Cook County Dept. of Environmental Control v. Tomar Industries, Division of Polk Bros.

• Decision Date: 05 June 1975
• Docket Number: No. 60931,60931
• Citation: 331 N.E.2d 196,29 Ill.App.3d 751
• Parties: COOK COUNTY DEPARTMENT OF ENVIRONMENTAL CONTROL, Plaintiff-Appellant, v. TOMAR INDUSTRIES, DIVISION OF POLK BROTHERS, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 196

331 N.E.2d 196

29 Ill.App.3d 751

COOK COUNTY DEPARTMENT OF ENVIRONMENTAL CONTROL, Plaintiff-Appellant, v. TOMAR INDUSTRIES, DIVISION OF POLK BROTHERS, Defendant-Appellee.

No. 60931.

Appellate Court of Illinois, First District, Third Division.

June 5, 1975.

Bernard Carey, State's Atty., Chicago, for plaintiff-appellant; Sheldon Gardner, Ellis B. Levin, Chicago, of counsel.

Paul D. Fischer, Chicago, for defendant-appellee; Grane & Kravets, of counsel.

MEJDA, Justice.

Plaintiff, Cook County Department of Environmental Control, filed a complaint against defendant, Tomar Industries, Division of Polk Brothers, charging that on March 28, 1974, defendant violated Article VI, Section 6.1--1(a) of the Cook County Environmental Control Ordinance which prohibits the emission of smoke in excess of one and one-half Ringelmann. Following a trial without a jury the trial court found defendant not guilty and entered a judgment on the finding, discharging the defendant. Plaintiff appeals.

Plaintiff contends that the trial court erred in taking judicial notice of a weather report and also that the trial court's finding that it was physically impossible to have obtained a proper Ringelmann reading under the weather conditions on the day in question was contrary to the manifest weight of the evidence. The pertinent facts follow.

Trial was had on May 23, 1974. Norbert Davis, an inspector for plaintiff, trained in the use of the Ringelmann smoke chart, was the only witness to appear for plaintiff. The Ringelmann chart consists of four graduated shadings used as a device to visually compare the density of smoke measured to correspond to one of the numbered shadings on the chart. Davis testified that on March 28, 1974, between 7:28 A.M. and 8:17 A.M., he observed emissions from a boiler smokestack on defendant's property located at 1401 North First Avenue in Melrose Park, Illinois, during which he recorded emissions equivalent to a number four reading on the Ringelmann chart for a period of 11 minutes. He also took two colored Polaroid photographs of the emissions which were admitted in evidence over defendant's objection. Davis stated that the weather conditions at the time were clear, cloudy and no precipitation. He issued a notice of violation which required defendant's appearance in the trial court. He further testified that later that day at another location he had a conversation with Theodore Telka, a maintenance man for defendant. Telka told him that Louis Posner, assistant superintendent for defendant, 'turns up a boiler valve to get more heat, he doesn't know it has an automatic system, an automatic control and he turns the valve up to get more heat, and this creates a maladjustment and creates smoke.' Davis stated that he advised Telka to have the boiler inspected and serviced, if necessary.

At the close of plaintiff's case defendant moved for a directed verdict, which was denied. Defendant then requested the trial court to take judicial notice of the weather report for March 1974 compiled by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, taken at O'Hare International Airport in Chicago. The trial court, over plaintiff's objection, took judicial notice of the report exhibited by defendant which report itself was never offered or introduced into evidence.

The weather report, which plaintiff included as an appendix to his brief in this court, is divided into the separate days of the month and into specific hours for each day. The data purportedly was gathered at the National Weather Service Office at O'Hare International Airport. Listed for March 28, 1974, is the general description of fog and thunderstorms with a total of 0.03 inches of rainfall recorded. The report further indicates that in the hours ending at 8:00 A.M. and 9:00 A.M., a trace of rainfall was recorded, and that it was raining between the hours of 6:00 A.M. and 9:00 A.M. A certification statement is contained in the printed report followed by a printed fascimile signature of the Director of the National Climatic Center. No seal or manual signature appears on the statement.

Defendant's only witness was Albert Langwost, an operational manager for defendant, who testified that the boiler in question was on the premises when the defendant acquired the property. He testified that the boiler had automatic controls; that it was rebuilt in July 1972 and had not been under regular service contract since 1970; and that the only recent problem it had developed was a water leak in January 1974.

Closing arguments were had in which defendant's attorney stated that from his own experience he knew that a precise Ringelmann reading could not be taken on a dark, cloudy day and that Inspector Davis should have used a tree, building, or some other dark object as a background in his observations to offset the misleading weather conditions. Plaintiff's attorney responded that Davis was trained in the use of the Ringelmann chart; that over a period of several minutes he had taken a reading of excessive emissions from defendant's smokestack and that defendant had introduced no evidence to refute plaintiff's evidence that a proper reading had been taken. The trial court then found for the defendant, stating: 'Gentlemen, it's the opinion of this Court that pursuant to the United States Weather Bureau, raining cloudy day, it's physically impossible in the opinion of this Court for the inspector to get a proper reading. Discharged.' Plaintiff's subsequent motion to vacate the judgment was denied.

Plaintiff initially contends that the trial court erred in taking judicial notice of the weather report. He argues that the report was not relevant to the issues in the case inasmuch as the weather data recorded at O'Hare International Airport is not probative of the weather...