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Peterson v. Domestic Utility Services Co.

DECEMBER 5, 1961.

VERN C. PETERSON, JOHN

v.

HEHN, WILLIAM C. NICHOL, EARL R. FOSWOLD, GEORGE PETERSON AND A.R. STARR, PLAINTIFFS-APPELLEES,

v.

DOMESTIC UTILITY SERVICES COMPANY AND VICTOR YACKTMAN, DEFENDANTS-APPELLANTS.



Interlocutory Appeal from the Circuit Court of Cook County; the Hon. HAROLD P. O'CONNELL, Judge, presiding. Order reversed.

MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 2, 1962.

The parties are substantially the same as those who were before this court in Peterson et al. v. Yacktman, 25 Ill. App.2d 208, 166 N.E.2d 452. In the instant case there is an additional party, Domestic Utility Services Company, a water utility operated by Yacktman. Following the denial by the Supreme Court of leave to appeal from the judgment of this court in the earlier case, the judgments were paid. The parties mutually canceled the prior agreements which consisted of a "subscription agreement for water services" and an "agreement for water supply." Thereupon, defendants notified plaintiffs of their intention to discontinue water service. Plaintiffs immediately filed a complaint (October 10, 1960) for injunction to restrain the discontinuance of the service. Plaintiffs moved for an immediate temporary injunction. The motion was entered and continued upon the agreement that the water service would be restored on a temporary basis under the same conditions as had existed prior to the denial of leave to appeal, without prejudice to the rights of any party. It was further agreed that the service would not be discontinued without due notice to the plaintiffs and the court.

The defendants in their answer stated that the plaintiffs are estopped to present their claim by reason of their earlier recovery upon the theory that Yacktman defrauded them by falsely pretending that he operated a water utility, so that the two complaints are totally inconsistent. Defendants also stated that granting the plaintiffs the relief sought would be a detriment to all other utility customers because the cost of providing service to the plaintiffs was in excess of the cost of service to the other customers. Defendants further stated that the plaintiffs had been receiving water in their homes for more than twenty years prior to subscribing to the defendant's service and that other sources of water, geographically closer than the defendants' supply, were available to the plaintiffs. Plaintiffs filed a motion to strike defendants' answer, or in the alternative, certain paragraphs thereof, on the ground that it sought to relitigate issues determined in the prior case, and that it contained irrelevant, scandalous and immaterial matter. The motion was not disposed of at the time of this appeal. Subsequent to the filing of their answer defendants moved to dismiss the complaint on the ground that the "maximum relief to which plaintiffs could have been entitled would have been a sufficient period of time to apply to the Commerce Commission for relief"; and that plaintiffs had not initiated any proceeding before the Commerce Commission. This motion was denied. All other pending motions were set for hearing on April 7, 1961, at which time the case had been pending for almost six months. Throughout that period water service had been furnished the plaintiffs and no notice of any intent to discontinue that service had been given. After hearing arguments of counsel the court on April 7, 1961 entered an order for a temporary injunction. The order made findings of fact in accordance with the allegations of plaintiff's complaint, even where controverted by the answer. No evidence was heard. The defendants were enjoined from taking any steps to discontinue the water service to the plaintiffs. Defendants prosecute this appeal.

[1-4] On the day the complaint was filed the defendants restored the water service. This was done pursuant to the agreement made in open court to restore and continue the service unless due notice be given plaintiffs and the court. At the hearing the attorneys for plaintiffs stated that the agreement had been observed. At the time of the injunctive order service had been furnished under the agreement for a period of six months. There was no need for an injunction to preserve the status quo. Should the defendants threaten to discontinue the water service, plaintiffs could present a supplemental complaint and the chancellor would have an opportunity to decide whether to grant a temporary injunction. Ordinarily, a temporary injunction is granted as a matter of emergency. The court should exercise caution in granting injunctions. In Hinson v. Ralston, 100 Ill. App. 214, the court said (219): "Injunctions are not granted because they will do no harm." An otherwise proper request for an injunction will not be defeated by defendant's assurance to the court that he will no longer give cause for its issuance. This is not what happened here. In the case at bar plaintiffs moved for an injunction and settled for an agreed order.

The chancellor expressed doubt as to jurisdiction over the matters in controversy in the instant case. Some of the cases relied upon by the plaintiffs relate to utilities operated by municipalities or other subdivisions of the State. Section 10.3 of the Public Utilities Act excludes these utilities from the operation of the Act. These cases would not be helpful. Under that Act the courts do not have the power to require a utility to extend its service on a permanent basis or to prescribe the rate of service or the terms and conditions thereof. These are matters cognizable only by the Commerce Commission, and the court is not concerned with them save on administrative review. The prayer for a temporary injunction is only incidental to the permanent relief sought by the complaint.

The writer of this opinion, consistent with the views expressed in his dissent in the previous case, agrees with the contention of the defendants that the plaintiffs are estopped from urging their position in the present complaint by reason of their contrary position in the earlier litigation. The writer is also of the opinion that the plaintiffs do not present a case for equitable relief. See Biehn v. Tess, 340 Ill. App. 140, 145, 91 N.E.2d 160. Therefore the order of April 7, 1961, is reversed.

Order reversed.

FRIEND, P.J. specially concurring:

I concur in the finding that the temporary injunction was improvidently issued and the reasons therefor, but not in the finding that plaintiffs do not present a case for equitable relief.

BRYANT, J. dissenting:

There is no estoppel in the present case. To so hold would be a confusion and relitigation of the first Peterson case, Peterson v. Yacktman, 25 Ill. App.2d 208, 166 N.E.2d 452, which is to be regarded by this court as res judicata. A dissenting view as to the correctness of the prior case should not be considered in this review of the temporary injunction, especially after the Illinois Supreme Court declined further review of the prior case.

There is neither a technical estoppel by record, nor equitable estoppel. This is clear from a reading of the record in the instant case and the opinion in the prior case. Allegations made in a prior case do not as a rule operate as an estoppel by record in a subsequent case, especially where the pleadings are not inconsistent with the position subsequently assumed by the pleader. ILP Estoppel § 3. See Espadron v. Davis, 385 Ill. 304, 52 N.E.2d 716.

In the prior case the plaintiffs had paid various sums of money for the installation of transmission mains and other properties. These payments were made between July 1, 1956 and June 30, 1957, and plaintiffs had relied on the fraudulent misrepresentations of defendant Yacktman that he operated a public water utility under the laws of Illinois and could compel such payments. In the instant case the additional defendant, Domestic Utilities Service Co., did not secure a Certificate of Convenience and Necessity until February 4, 1958, even though it may have been acting as a public utility prior to that time. The material allegations here concern ...


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