author: MR. JUSTICE RYAN

text:
    (No. 50206.
    RAYMOND S. PETERSEN et al., Appellees, v. HUBSCHMAN CONSTRUCTION CO., INC., Appellant.

      Opinion filed May 18, 1979.

      Jerome H. Torshen, of Jerome H. Torshen, Ltd., of Chicago, and Paul Bernstein and Henry A. Waller, of Chicago, for appellant.
    Stephen H. Katz, of Waukegan, for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves the dual issues of “implied warranty of habitability” and “substantial performance” as they apply to a contract of sale of a new home by a builder-vendor. The purchasers, Raymond S. Petersen and Delores E. Petersen, sued the builder-vendor, Hubschman Construction Company, Inc., in the circuit court of Lake County for the return of the $10,000 earnest money they had paid on the contract for the purchase of a new house, and for the value of the labor and materials supplied by Petersen. The trial court entered judgment in favor of the plaintiffs for $19,000. The appellate court affirmed. (53 Ill. App. 3d 626.) We granted leave to appeal.

In April 1972, the plaintiffs, Raymond and Delores Petersen, entered into a $71,000 contract with the defendant, Hubschman Construction Company, Inc., for the purchase of a piece of land and for the construction of a new home on that land. Later, the parties agreed to an offset from the contract price for work to be done on the home by Petersen. The plaintiffs paid $10,000 earnest money. In the fall of 1972 the Petersens became dissatisfied with Hubschman’s performance, and Hubschman later agreed to repair or correct numerous items on a “punch list” but failed to satisfactorily carry out this agreement. The trial court found that the defects included: a basement floor pitched in the wrong direction away from a drain; improperly installed siding; a defective and ill-fitting bay window; a seriously defective front door and the door frame; and deterioration and “nail-popping” in the drywall on the interior. Testimony at the trial by the Petersens and by one of Hubschman’s former employees indicated that repair of these items would involve major amounts of work. However, no one disputes that the house was at least habitable in that the Petersens could live in it and it was not dangerously unsafe. The Petersens proposed that Hubschman deposit $1,000 in escrow to guarantee completion of the repairs, but the suggestion was rejected. The Petersens refused to accept the home, and no closing of the transaction occurred; that is, the balance of the purchase price was not paid and no deed was delivered. Hubschman then invoked the contract forfeiture provision and notified the Petersens that they had forfeited both the $10,000 deposit and approximately $9,000 worth of labor and materials supplied by Petersen. The Petersens sued Hubschman. The trial court ruled that there were “defects in substance in the construction” of the house and that Hubschman had not substantially performed and could not declare a forfeiture. The court held that the Petersens were entitled to recover the earnest money and the value of the labor and materials provided.

Usually it is the builder-vendor who urges that, by reason of caveat emptor or merger, there is no warranty which the vendee of a new house can assert against a builder-vendor. In our case, however, it is the builder-vendor who urges the existence of the implied warranty of habitability. Hubschman, however, asserts that the implied warranty of habitability can be asserted by a vendee of a new house only if the defects in the structure render it unfit for habitation. Since in our case the defects complained of did not render the house uninhabitable, Hubschman contends that the trial court erred in ruling in favor of the Petersens. In this regard, Hubschman relies on Goggin v. Fox Valley Construction Corp. (1977), 48 Ill. App. 3d 103. In that case the court, after remanding the case to the trial court, stated, in dicta, what that court conceived to be the nature of the warranty of habitability as follows:

“The primary function of a new home is to shelter its inhabitants from the elements. If a new home does not keep out the elements because of a substantial defect of construction, such a home is not habitable within the meaning of the implied warranty of habitability. [Citation.] Another function of a new home is to provide its inhabitants with a reasonably safe place to live, without fear of injury to person, health, safety, or property. If a new home is not structurally sound because of a substantial defect of construction, such a home is not habitable ***. If anew home is not aesthetically satisfying because of a defect of construction, such a defect should not be considered as making the home uninhabitable.” Goggin v. Fox Valley Construction Corp. (1977), 48 Ill. App. 3d 103, 106.

Ordinarily, it is the position of the buyer that caveat emptor or merger does not prohibit recovery from a builder-vendor for latent defects in a new house because of the warranty of habitability. However, in our case, the Petersens contend that the warranty of habitability is not involved since title to the property had not passed to them. It is their position that the builder-vendor had not substantially performed the contract to construct the new house and therefore they were entitled to repudiate the contract and to recover a money judgment.

This court has not considered the implied warranty of habitability as it relates to a contract for sale of a new house by a builder-vendor. That question was involved in Coutrakon v. Adams (1964), 31 Ill. 2d 189, but this court decided that case on other grounds. This court has recognized an implied warranty of habitability in a landlord-tenant relationship. (Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351.) The appellate courts of this State, however, have had the opportunity on several occasions to consider the implied warranty of habitability in cases involving the sale of new homes by a builder-vendor, but the results have not been uniform. See Week v. A:M Sunrise Construction Co. (1962), 36 Ill. App. 2d 383; Coutrakon v. Adams (1963), 39 Ill. App. 2d 290; Narup v. Higgins (1964), 51 Ill. App. 2d 102; Hanavan v. Dye (1972), 4 Ill. App. 3d 576; Garcia v. Hynes & Howes Real Estate, Inc. (1975), 29 Ill. App. 3d 479; Conyers v. Molloy (1977), 50 Ill. App. 3d 17; Goggin v. Fox Valley Construction Corp. (1977), 48 Ill. App. 3d 103.

The implied warranty of habitability in cases involving the sale of new homes by a builder-vendor is a judicial innovation of rather recent origin used to avoid the harshness of caveat emptor and the doctrine of merger and to afford, a degree of relief to vendees of new homes who subsequently discover latent defects in the structure. This represents a distinct departure from accepted principles of real estate law that were based on reasons founded in antiquity. The vendee took the property at his risk. If he failed to discover defects, caveat emptor prevented him from maintaining an action against the vendor. The principle of merger produced the same result. All agreements between a vendee and the vendor were said to have merged in the deed, and if reservations were not contained in that instrument the doctrine of merger would prevent relief to the aggrieved vendee after receipt of the deed. (See Roeser, The Implied Warranty of Habitability in the Sale of New Housing: The Trend in Illinois, 1978 S.I.U. L.J. 178.) In Illinois, however, certain exceptions to the merger doctrine have been created. Reasoning that the merger doctrine evolved solely to protect the security of land titles, the Illinois courts have held that when the deed embraced and contained all of the subjects of the executory contract, the contract merged with the deed. However, an executory agreement for the performance of separate and distinct provisions did not merge with the deed. The prior contract is superseded only as to such of its provisions as are covered by the conveyance made pursuant to its terms. Fitzpatrick v. Allied Contracting Co. (1962), 24 Ill. 2d 448; Chicago Title & Trust Co. v. Wabash-Randolph Corp. (1943), 384 Ill. 78; Trapp v. Gordon (1937), 366 Ill. 102; Biewer v. Mueller (1912), 254 Ill. 315; Shelby v. Chicago & Eastern Illinois R.R. Co. (1892), 143 Ill. 385; Laflin v. Howe (1885), 112 Ill. 253; Ludeke v. Sutherland (1877), 87 Ill. 481; Brownell v. Quinn (1964), 47 Ill. App. 2d 206.

Although of recent origin, the implied warranty of habitability has found substantial acceptance in the various jurisdictions, and the commentators have voiced their approval and have examined the nature and basis of the implied warranty. See cases collected in Annot., 25 A.L.R.3d 383 (1969); see also Bearman, Caveat Emptor In Sales Of Realty — Recent Assaults Upon The Rule, 14 Vand. L. Rev. 541 (1961); Roberts, The Case Of The Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell L.Q. 835 (1967); Haskell, The Case For An Implied Warranty Of Quality In Sales Of Real Property, 53 Geo. L.J. 633 (1965); Jaeger, The Warranty of Habitability, 46 Chi.-Kent L. Rev. 123 (1969); 47 Chi.-Kent L. Rev. 1 (1970).

Because of the vast change that has taken place in the method of constructing and marketing new houses, we feel that it is appropriate to hold that in the sale of a new house by a builder-vendor, there is an implied warranty of habitability which will support an action against the builder-vendor by the vendee for latent defects and which will avoid the unjust results of caveat emptor and the doctrine of merger. Many new houses are, in a sense, now mass produced. The vendee buys in many instances from a model home or from predrawn plans. The nature of the construction methods is such that a vendee has little or no opportunity to inspect. The vendee is making a major investment, in many instances the largest single investment of his life. He is usually not knowledgeable in construction practices and, to a substantial degree, must rely upon the integrity and the skill of the builder-vendor, who is in the business of building and selling houses. The vendee has a right to expect to receive that for which he has bargained and that which the builder-vendor has agreed to construct and convey to him, that is, a house that is reasonably fit for use as a residence.

Many of the cases have held that the warranty of habitability will be applied for the protection of the vendee only when the house he contracts to purchase is not completed at the time of the execution of the contract. The reasoning is that, if it is a completed house, the vendee has an opportunity to make a complete inspection for defects before signing the contract. We do not agree with this reasoning. In most instances, the latent defects would not be discoverable by a vendee whether the house is complete or incomplete at the time the contract is entered into. The same reliance must be placed on the integrity and skill of the builder-vendor in the purchase of a completed house as in the purchase of an uncompleted one. The vendee should be permitted to recover for latent defects in either case. In both instances the builder-vendor is selling a house which he knows will be used as a home. The vendee’s expectation that it will be reasonably suitable for that purpose is a reasonable one, whether or not the house is completed at the time the contract is executed.

In this court the vendees (the Petersens) urge that the implied warranty of habitability is not involved and that it is not needed, since in our case the deed has not been delivered and the contract has not merged in the deed. The implied warranty does not arise as a result of the execution of_ the deed. It arises by virtue of the execution of the agreement between the vendor and the vendee. If that agreement would have contained express covenants concerning the quality of construction they would not have merged in the deed, but would have continued as a collateral undertaking. In Brownell v. Quinn (1964), 47 Ill. App. 2d 206, 208-09, it was held that a covenant to construct a building in a “neat and workmanlike” manner did not merge in the deed because the delivery of the deed did not fulfill that provision of the contract. The implied warranty, in a similar manner, exists as an independent undertaking collateral to. the covenant to convey. As a matter of public policy it relaxes the rule of caveat emptor and the doctrine of merger in the special situation we are now discussing. It is implied as a Separate covenant, between the builder-vendor and the vendee because of the! unusual dependent relationship of the vendee to the! vendor. The implied warranty arises with the execution of the contract and survives the delivery of the deed. It is an implied covenant by the builder-vendor that the house which he contracts to build and to convey to the vendee is reasonably suitable for its intended use.

What we have just said evidences our disagreement with the narrow interpretation of the implied warranty of habitability urged by Hubschman and stated by the appellate court in Goggin. The mere fact that the house is capable of being inhabited does not satisfy the implied warranty. The use of the term “habitability” is perhaps unfortunate. Because of its imprecise meaning it is susceptible of misconstruction. It would more accurately convey the meaning of the warranty as used in this context if it were to be phrased in language similar to that used in the Uniform Commercial Code, warranty of merchantability, or warranty of fitness for a particular purpose. See Ill. Rev. Stat. 1977, ch. 26, pars. 2-314, 2-315.

In fact, by drawing an analogy to the provisions of the Uniform Commercial Code, it has been suggested:

“A solution to the problems created by the structural and habitability limitations is provided by characterizing the warranty as one of merchantability rather than one of habitability. Using the Uniform Commercial Code by analogy, the builder-vendor would guarantee that, upon sale, the house would be of fair average quality, that it would pass without objection in the building trade, and that it would be fit for the ordinary purpose of living in it.
This warranty would suit the expectations and needs of both parties. *** Some courts have already moved in this direction. [Pollard v. Saxe & Yolles Development Co. (1974), 12 Cal. 3d 374, 525 P.2d 88, 115 Cal. Rptr. 648; Wright v. Creative Corp. (1972), 30 Colo. App. 575, 498 P.2d 1179; Gable v. Silver (Fla. App. 1972), 258 So. 2d 11; Smith v. Old Warson Development Co. (Mo. 1972), 479 S.W.2d 795; Schipper v. Levitt & Sons (1965), 44 N.J. 70, 207 A.2d 314; Yepsen v. Burgess (1974), 269 Or. 635, 525 P.2d 1019; Rothberg v. Olenik (1970), 128 Vt. 295, 262 A.2d 461.] ” Comment, Washington’s New Home Implied Warranty of Habitability — Explanation and Model Statute, 54 Wash. L. Rev. 185, 211-12 (1978). (Footnotes omitted except cases cited in footnote 138, bracketed above.)

Applying the reasoning of the above suggestion to the limited context of our case, we hold that implied in the contract for sale from the builder-vendor to the vendees is a warranty that the house, when completed and conveyed to the vendees, would be reasonably suited for its intended use. This implied warranty, of course, extends only to latent defects which interfere with this legitimate expectation.

Reference to the Uniform Commercial Code concerning the nature of the implied warranty invites consideration of the effect of provisions in a contract disclaiming the existence of such an implied warranty. (See Ill. Rev. Stat. 1977, ch. 26, par. 2 — 315 for disclaimers under the Code.) Although the implied warranty of habitability is a creature of public policy, we do not consider a knowing disclaimer of the implied warranty to be against the public policy of this State. However, we do hold that any such a disclaimer must be strictly construed against the builder-vendor. (See Conyers v. Molloy (1977), 50 Ill. App. 3d 17.) We refer to the well-reasoned opinion of the Supreme Court of Missouri in Crowder v. Vandendeale (Mo. 1978), 564 S.W.2d 879, where it was held that “boilerplate” clauses, however worded, are rendered ineffective in such a disclaimer (564 S.W.2d 879, 881), and the court further stated:

“[O]ne seeking the benefit of such a disclaimer must not only show a conspicuous provision which fully discloses the consequences of its inclusion but also that such was in fact the agreement reached. The heavy burden thus placed upon the builder is completely justified, for by his assertion of the disclaimer he is seeking to show that the buyer has relinquished protection afforded him by public policy. A knowing waiver of this protection will not be readily implied.” (Emphasis in original.) Crowder v. Vandendeale (Mo. 1978), 564 S.W.2d 879, 881 n.4.

Hubschman argues that since the house was habitable the Petersens must fulfill the contract to purchase and are only entitled to have the defects repaired or to damages if the builder fails to repair. We stated above that the implied warranty arose out of the execution of the contract for sale. At the time the Petersens repudiated the contract, it was executory and substantial performance of it, including the implied warranty, by Hubschman was a constructive condition to performance by the Petersens. The trial court found that “there were defects in substance in the construction” of the house and held that, under the circumstances of the case, Hubschman could not rely on substantial performance in declaring a forfeiture. It would be manifestly unjust to require the Petersens to accept a house in which “there were defects in substance in construction” and to settle for damages. That is not what they had bargained for. They contracted to pay for a house reasonably fit for its intended use, not for a house with substantial defects plus damages. “It is substantial performance of what the builder promised to do, of the construction work, *** that is the ‘condition’ of the [vendee’s] duty to pay.” (3A A. Corbin, Contracts 314 (I960).) If a contractor builds a house on his own land for sale to a buyer, a departure from the plans will more readily be held to be sufficient reason for justifying rejection by the buyer than if the house would have been built on the “buyer’s” land. If the defective house is built on the land of the contractor it belongs to him and depriving him of the contract price does not deprive him of the value of his labor and materials. (3A A. Corbin, Contracts 314, 344-45 (I960).) We do not decide in this case what the appropriate remedy would have been if the defects had not been discovered until after the deed had been delivered. We also do not decide whether there is an implied warranty when the builder builds the house for another on the “buyer’s” land.

The question of whether there has been substantial performance of the terms and conditions of a contract sufficient to justify a judgment in favor of the builder for the contract price is always a question of fact. (3A A. Corbin, Contracts 314, 318 (I960).) In this case the court held that Hubschman had not substantially performed, and the facts recited by the court in its order support that determination. Since the house was constructed on land owned by Hubschman, he was in a position to recover for his labor and materials through the resale of the house. There is some indication in this case that Hubschman has, in fact, resold the house. The circuit court of Lake County therefore did not err in treating the contract as repudiated by the Petersens and in entering a money judgment in their favor. The judgment of the appellate court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE WARD

license: Public Domain

text:
    (No. 51010.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RAY PATTON, Appellee.

      Opinion filed May 18, 1979.

      William J. Scott, Attorney General, of Springfield, and Michael M. Mihm, State’s Attorney, of Peoria (Donald B. Mackay, Melbourne A. Noel, Jr., and Sandra L. Devine, Assistant Attorneys General, of Chicago, and James E. Hinterlong and John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostenelli and Frank W. Ralph, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

Verdicts of guilty were returned against defendant, Ray Patton, on both counts of an indictment charging robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1) and theft from the person (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1) arising out of a single incident of “purse snatching.” The trial court did not enter judgment on the theft verdict, but entered judgment on the verdict of robbery and sentenced the defendant to a term of 1 year to 6 years. On the defendant’s appeal the appellate court, with one justice dissenting, reversed the judgment and remanded the cause to the circuit court of Peoria County with directions to enter a judgment of conviction for the less serious offense of theft from the person. (60 Ill. App. 3d 456.) We granted the People’s petition for leave to appeal. 65 Ill. 2d R. 315.

On June 27, 1976, Rita Alexander, her husband and their four young children were hurrying along a sidewalk toward a church in Peoria Heights, so as not to be late for a 5:30 p.m. service. A few other persons in the immediate vicinity were likewise walking swiftly toward the church entrance. Mrs. Alexander was carrying her purse “[i] n the fingertips of my left hand down at my side.” She noticed the defendant cross the street in front of the Alexanders and thought that perhaps he too was going to the service. Instead, the defendant changed direction and walked toward the Alexander family. As he came abreast of Mrs. Alexander, he “swift [ly] grab [bed] ” her purse, throwing her arm back “a little bit,” she said, and fled. She testified that the purse was gone before she realized what had happened. Once she overcame her momentary shock, Mrs. Alexander screamed and Mr. Alexander unsuccessfully chased the defendant. He was subsequently apprehended through the tracing of a license plate number on an automobile which witnesses had observed him enter. There was no other evidence offered bearing on the questions of use of force, threat of the imminent use of force, and resistance by or injury to Mrs. Alexander.

The question we consider is whether the simple taking or “snatching” of a purse from the fingertips of its unsuspecting possessor in itself constitutes a sufficient use of force, or threat of the imminent use of force, to warrant a conviction of robbery. (See Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1.) It is the People’s contention that any amount of physical force whatsoever, employed to overcome the force exerted by the person to maintain control over the object in hand, is sufficient to bring the act of taking within the robbery statute. Robbery is a Class 2 felony. (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1(b).) The defendant contends that his behavior, without more, amounted only to theft from the person, which is a Class 3 felony, a lesser offense (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(e)(3)).

Our statute defines robbery:

“A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 1.)

Thus, if no force or threat of imminent force is used in the taking, there is no robbery, although the act may constitute a theft. (See Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1.) Mrs. Alexander did not realize what was happening until after the defendant had begun his flight, and it is clear there was no robbery through the “threatening [of] the imminent use of force.” The People maintain that the defendant’s act of grabbing was a “use of force” such as is contemplated by the robbery statute, and that no minimum amount of force need be shown to constitute robbery under the statute.

In most jurisdictions where the question has been considered it has been held that a simple snatching or sudden taking of property from the person of another does not of itself involve sufficient force to constitute robbery, though the act may be robbery where a struggle ensues, the victim is injured in the taking, or the property is so attached to the victim’s person or clothing as to create resistance to the taking. (Annot., 42 A.L.R.3d 1381, 1383-88 (1972); 2 Anderson, Wharton’s Criminal Law and Procedure sec. 561 (1957); W. LaFave & A. Scott, Criminal Law 696-97 (1972).) This view is of long standing. In 1839, the (English) Fourth Report of the Commissioners on Criminal Law, lxviii, stated that there was not sufficient “violence” in the “snatching or taking of property unawares from the person without some actual injury to the person” to constitute robbery; but the “stealing is by violence whensoever it is effected by doing any the least injury to the person, or whensoever the act of taking is accompanied by any degree of force employed to overcome resistance to such taking.” (Michael & Wechsler, Criminal Law and Its Administration 383, n.2 (1940).) Thus, in the English case of King v. Lapier (1784), 1 Leach (3d ed.) 321, 168 Eng. Rep. 263, there was sufficient violence where a lady’s ear was “torn entirely through” in an endeavor by the prisoner to snatch her earring. And in Rex v. Mason (1820), Russ. & Ry. 420, 168 Eng. Rep. 876, enough “actual force” existed where the prisoner jerked and broke a steel watch chain around the victim’s neck. The decisions in this jurisdiction considering the question of force in the taking of property have corresponded with the above statements.

To illustrate, in Hall v. People (1898), 171 Ill. 540, this court held it was not robbery where the defendant unbuttoned his inebriated drinking companion’s vest, “possibly by pulling at it, and took the pocket-book from his inside vest pocket.” (171 Ill. 540, 543.) In distinguishing between private stealing from the person of another and robbery, the court said that “where it appeared that the article was taken without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand of the wearer, — rather by sleight of hand and adroitness than by open violence, and without any struggle on his part, — it is merely larceny from the person.” (171 Ill. 540, 542-43.) The court further observed that if the facts of the case were held to constitute robbery, “then no practical distinction between that crime and larceny from the person exists. The two crimes approach each other so closely that cases may arise where it may be doubtful upon which side of the line they should fall. Still, it is the duty of courts, as well as of juries, to resolve such doubts in favor of the accused.” 171 Ill. 540, 543-44.

The court in Klein v. People (1885), 113 Ill. 596, affirmed a conviction of robbery where the evidence established that the defendant was one of two men who grabbed a handbag “with such force,” the prosecuting witness testified, “that it bruised my arm, and it was lame for several days.” 113 Ill. 596, 600.

Robbery convictions were affirmed in People v. Campbell (1908), 234 Ill. 391, where the defendants had scuffled with their victim over possession of a diamond stud fastened in his shirt front. The court stated: “In the absence of active opposition, if the article is so attached to the person or clothes as to create resistance, however slight, or if there be a struggle to keep it, the taking is robbery.” 234 Ill. 391, 393.

One year later in People v. Ryan (1909), 239 Ill. 410, this court reversed a conviction for assault with intent to commit robbery. The defendant there by “stealth and adroitness” had placed a newspaper under the chin of his intended victim while tugging on his diamond tie stud. The victim grabbed the defendant’s hand, and the defendant fled. It was said: “If the taking is by actual violence causing a substantial injury to the person, such as grabbing a hand-bag from a lady’s arm with such force that the arm is bruised and lame for several days, it will be robbery.” (239 Ill. 410, 412-13.) Because there was no injury to the victim, no violence or struggle, and no intent to obtain or retain the stud by force, the evidence was held to be sufficient only to show an assault with intent to steal from the person.

In People v. Jones (1919), 290 Ill. 603, the evidence was held insufficient to support a robbery conviction where the defendant had stealthily removed a pocket-book from his intoxicated victim’s pocket and transferred it to his own. When the victim, who had observed the transfer, said, “You have my pocket-book,” the defendant “hit him over the eye and ‘knocked him out.’ ” (290 Ill. 603, 605.) The court concluded there was no evidence of a struggle to retain possession, but only an accusation after the theft occurred “which the plaintiff in error resented by assaulting the accuser.” His actions were therefore “those of a pick-pocket and not of a highwayman.” 290 Ill. 603, 606.

Robbery convictions of defendants who had grabbed a pocketbook from the hand of their victim were reversed in People v. O’Connor (1923), 310 Ill. 403, for lack of evidence that force or intimidation was used. Although some testimony of violence and threats by the defendants was offered at trial by the complaining witness, the court concluded it appeared to be the “vague remembrance of impressions received while strongly under the influence of alcoholic liquor.” (310 Ill. 403, 407.) And in People v. Chambliss (1966), 69 Ill. App. 2d 459, the court sustained a robbery conviction where the necessary force was held to have occurred during the course of a struggle for possession of a wallet immediately after the victim’s pocket had been picked.

We consider that our cases show that where an article is taken, as it was put in Hall v. People (1898), 171 Ill. 540, 542-43, “without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand” the offense will be held to be theft from the person rather than robbery.

There has been no action by the legislature evincing an intention to change the law as to the nature and elements of robbery. To the contrary the legislative design, it has been said, has been to leave the nature of the crime unchanged. The committee comments to section 18 — 1 state: “This section codifies the law in Illinois on robbery and retains the same penalty. No change is intended. *** [T] he taking by force or threat of force is the gist of the offense ***.” Ill. Ann. Stat., ch. 38, par. 18 — 1, Committee Comments, at 213 (Smith-Hurd 1970).

We have noted that Mrs. Alexander testified her arm was thrown back “a little bit,” but “[w] here it is doubtful under the facts whether the accused is guilty of robbery or larceny from the person, it is -the' duty of the court and the jury to resolve that doubt in favor of the lesser offense.” (People v. Williams (1961), 23 Ill. 2d 295, 301.) For the reasons given, the judgment of the appeUate court is affirmed.

Judgment affirmed.


text:
    (No. 50706.
    TWILA ANN STRUKOFF, Appellant, v. ROBERT STRUKOFF, Appellee.

      Opinion filed May 18, 1979.

      RYAN, J., took no part.
    Lionel I. Brazen, of Chicago (Manuel Rosenstein, of counsel), for appellant.
    James J. Reagan, of Northbrook, for appellee.
    Albert E. Jenner, Jr., Marshall J. Auerbach, James H. Feldman, and Kathleen J. Purcell, of Jenner & Block, of Chicago, for amici curiae Albert E. Jenner, Jr., and Marshall J. Auerbach.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal is from a holding by a judge of the circuit court of Cook County that section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)) is an unconstitutional legislative encroachment upon the rulemaking powers of the judiciary. The appeal comes to us directly under our Rule 302(a). 58 Ill. 2d R. 302(a).

On July 14, 1977, the plaintiff, Twila Ann Strukoff, filed a complaint for divorce against the defendant, Robert Strukoff. The Illinois Marriage and Dissolution of Marriage Act (the Act) became effective on October 1, 1977, and by its terms was made applicable to all pending proceedings “with respect to issues on which a judgment has not been entered” (Ill. Rev. Stat. 1977, ch. 40, par. 801(b)). On November 19, 1977, the trial court, with the consent of the parties’ attorneys, proposed that a hearing on the grounds alleged for dissolution of the marriage be conducted that morning and that, if grounds were found, the contested hearing with respect to the disposition of property and maintenance be held that afternoon. The transcript of proceedings shows the two hearings were conducted as the court had proposed.

A judgment of dissolution of marriage on the ground of desertion was entered, which judgment also contained various provisions for the disposition of the marital and nonmarital property and an award of temporary maintenance for the plaintiff. A post-trial motion was filed by the plaintiff in which she asked that the judgment be set aside and that a new trial be granted on the ground, inter alia, that the court had failed to conduct a bifurcated trial as provided for by section 403(e) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)). After a hearing on the motion, the court modified the original judgment by awarding the plaintiff a homestead exemption of $5,000 in the. family residence, which the court had previously held to be nonmarital property and awarded to the defendant, but the court denied that portion of the motion which asked that the judgment be vacated and a new trial ordered. The trial court, sua sponte, further held section 403(e) of the Act to be unconstitutional. The grounds given were that the provisions in the section were mandatory upon trial courts and in violation of the judicial article of the Illinois Constitution of 1970 by predetermining “particular issues in cases and their priorities as to being heard by the Court.” The court held that the bifurcation procedure mandated by section 403(e) was a matter properly to be provided for by the supreme court under its rulemaking authority.

No brief was filed here by the defendant, but the attorneys who co-drafted the Act have filed a brief amici curiae with respect to the constitutionality of section 403(e).

Section 403(e) of the Act provides:

“Contested trials shall be on a bifurcated basis with the grounds being tried first. Upon the court determining that the grounds exist, the court shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial.” (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).)

We would observe that the record clearly discloses that there was a bifurcated trial. The question of the grounds for dissolution was tried in the morning, and the remaining issues were tried in the afternoon of the same day. There was noncompliance with the terms of section 403(e) only because there was no interval of at least 48 hours between the two hearings.

Article VI, section 1, of the Illinois Constitution of 1970 states: “The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” Judicial power is not defined in the Constitution, but all such power is granted exclusively to the courts. (People v. Jackson (1977), 69 Ill. 2d 252, 256.) It is clear that this court possesses rulemaking authority to regulate the trial of cases. (See People v. Jackson (1977), 69 Ill. 2d 252, and cases cited; see generally Bonaguro, The Supreme Court’s Exclusive Rulemaking Authority, 67 Ill. Bar J. 408-11 (1979); C. Korbakes, J. Alfini, & C. Grau, Judicial Rulemaking in the State Courts 56-60 (Am. Jud. Soc’y 1978); Note, People ex rel. Stamos v. Jones: A Restraint on Legislative Revision of the Illinois Supreme Court Rules, 6 J. Mar. J. Prac. & Proc. 382 (1973).) It should be noted that the situation here is not one in which the validity of a rule is challenged (e.g., People v. Lobb (1959), 17 Ill. 2d 287; People v. Callopy (1934), 358 Ill. 11), nor is it one in which a statute directly conflicts with a rule of this court (e.g., People v. Jackson (1977), 69 Ill. 2d 252; People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62).

Article II, section 1, of the Illinois Constitution of 1970 declares: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” The doctrine of separation of powers has been historically regarded by this court, “in theory and in practice,” as meaning “that the whole power of two or more of the branches of government shall not be lodged in the same hands”; it does not contemplate that there are or should be “rigidly separated compartments” or “a complete divorce among the three branches of government” (In re Estate of Barker (1976), 63 Ill. 2d 113, 119). This court in City of Waukegan v. Pollution Control Board (1974), 57 Ill. 2d 170, 174-75, “after extensive examination of its earlier decisions and the proceedings of the 1970 Constitutional Convention” (People v. Farr (1976), 63 Ill. 2d 209, 213), stated:

“It has been generally recognized that separation of powers does not forbid every exercise of functions by one branch of government which conventionally [are] exercised by another branch. Professor Frank Cooper (1 F. Cooper, State Administrative Law 16 (1965)) observes: ‘[T] he real thrust of the separation of powers philosophy is that each department of government must be kept free from the control or coercive influence of the other departments.’ ”

In Agran v. Checker Taxi Co. (1952), 412 Ill. 145, a statute requiring the giving of a five-day notice to every attorney of record prior to ex parte action to dismiss a case for want of prosecution was held invalid as a legislative encroachment upon the inherent judicial power to adjudge, determine and render a judgment. This court said: “The General Assembly has power to enact laws governing judicial practice only where they do not unduly infringe upon the inherent powers of the judiciary. (People v. Callopy, 358 Ill. 11.) Were this not true, a basic tenet of our democratic form of government would be destroyed, and the relevant constitutional provisions rendered nugatory. It is the undisputed duty of the court to protect its judicial powers from encroachment by legislative enactments, and thus preserve an independent judicial department.” Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149.

But the situation in Agran was distinguished in People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, where the petitioner, relying on Agran, contended that a statutory requirement of attaching a transcript of evidence relating to the findings of the trial court to a court order for the issuance of a tax deed constituted a legislative infringement on “the power of the judiciary to regulate the day-to-day functions of courtroom procedure.” (40 Ill. 2d 293, 295.) This court rejected the contention and, noting the dissimilarity from Agran, said that “proceedings relating to tax sales, redemptions and deeds are entirely statutory in origin and nature.” (40 Ill. 2d 293, 301.) The court determined that the requirement in question was “but one of many statutory conditions upon which issuance of a tax deed is predicated. This requirement does not purport to direct how a court should decide cases nor does it circumscribe the power of a judge to determine facts and apply the law to them.” 40 Ill. 2d 293,302.

Like the proceeding involved in People ex rel. County Collector v. Jeri, Ltd. (1968), 40 Ill. 2d 293, dissolution of marriage is entirely statutory in origin and nature. (People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 394; People ex rel. Christiansen v. Connell (1954), 2 Ill. 2d 332, 341; McFarlin v. McFarlin (1943), 384 Ill. 428, 430-31; see Galvin v. Galvin (1978), 72 Ill. 2d 113, 119.) The statement of this court in McFarlin v. McFarlin (1943), 384 Ill. 428, 430-31, illustrates this:

“Courts of equity have no inherent power in cases of divorce. The jurisdiction of such courts to hear and determine divorce matters is conferred only by statute. While such courts may exercise their powers within the limits of the jurisdiction conferred by the statute, the jurisdiction depends upon the grant of the statute and not upon general equity powers.”

The legislature has stated the purposes of the Act in the statute itself. They include the promotion of amicable settlements of disputes between parties to a marriage, the mitigation of potential harm to spouses and their children caused by the process of dissolution, the making of reasonable provision for spouses and minor children after litigation, and elimination of marital misconduct from consideration in the adjudication of rights and duties incident to legal dissolution of marriage. (Ill. Rev. Stat. 1977, ch. 40, par. 102.) The purpose of the specified waiting period between the hearings in contested trials, obviously in aid of the Act’s general purposes, is to encourage the amicable settlement of remaining issues. (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).) The objectives of legislation of this character are unquestionably laudable (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576; People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 394), reasonable, and within the province of legislative power (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576).

Supreme Court Rule 1 provides in part: “The rules on proceedings in the trial court, together with the Civil Practice Act and the Code of Criminal Procedure, govern all proceedings in the trial court, except to the extent that the procedure in a particular kind of action, such as attachment, is regulated by a statute other than the Civil Practice Act.” (58 Ill. 2d R. 1.) Dissolution of marriage is a particular kind of action regulated in part by a statute other than the Civil Practice Act or our rules. Because of the nature of section 403(e) and because there is no conflict with a rule of this court, the procedural requirements of section 403(e) of the Act are not an unconstitutional legislative encroachment upon the rulemaking power of the judicial branch. We would note parenthetically that statutory provisions governing procedure are not uncommon (e.g., Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d) (separate sentencing hearing); Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1 (fitness for trial or sentencing); Ill. Rev. Stat. 1977, ch. 40, pars. 1516, 1517 (adoption); Ill. Rev. Stat. 1977, ch. 45, par. 44 (suggestion of damages in ejectment); Ill. Rev. Stat. 1977, ch. 46, par. 23 — 13 (notice of intent to contest election); Ill. Rev. Stat. 1977, ch. 47, pars. 2.2(b), (c) (eminent domain); Ill. Rev. Stat. 1977, ch. 102, par. 14 (taxpayer suit to enjoin disbursement of public money)). See People v. Spegal (1955), 5 Ill. 2d 211, 221.

We consider that the parties could not waive the provision for an interval between the hearings called for by section 403(e). The language of the legislature is that the court “shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial.” (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).) The provision is mandatory and not discretionary, and the noncompliance in the trial court will require reversal of the judgment as it relates to the second hearing. (The contentions of the plaintiff as to the property disposition ordered have not been argued and briefed by the defendant, and we shall not consider them in this opinion.)

An action for dissolution of marriage affects society, and it involves interests other than those of the parties themselves. (People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 394.) In the light of the Act’s purposes, we consider that the provision for bifurcated hearings and the interval to afford the parties an opportunity to settle amicably remaining questions are not unreasonable conditions in this statutorily created proceeding. (See Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576; People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 396.) We do not see grounds to fear that prejudice to the parties or a party will be caused by the provisions we are considering. Marital misconduct may not be considered under the Act in regard to the disposition of property, maintenance, child support and child custody (Ill. Rev. Stat. 1977, ch. 40, pars. 503(c), 504(b), 505, 602(b)), and there could not reasonably be harm to a party under the Act by a separate, prior hearing on the claimed grounds for dissolution. Temporary relief is available under the Act to protect the rights of parties and their children in the event that the specified interval between the hearings might otherwise result in prejudice to their respective rights. (Ill. Rev. Stat. 1977, ch. 40, par. 501.) Too, the court may consider a party’s dissipation of marital and nonmarital property in deciding on the division of property. Ill. Rev. Stat. 1977, ch. 40, par. 503(c)(1).

For the reasons given, the judgment of the trial court is reversed, excepting that portion of the judgment which orders the dissolution of the marriage, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

MR. JUSTICE RYAN took no part in the consideration or decision of this case.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51203.
    THE CITY OF URBANA, Appellee, v. THE COUNTY OF CHAMPAIGN et al., Appellants.

      Opinion filed May 18, 1979.

      Thomas J. Difanis, State’s Attorney, of Urbana (Joseph D. Pavia, Assistant State’s Attorney, of counsel), for appellant County of Champaign.
    Greaves, Lemer & Gadau, of Champaign, for appellant R & T, Inc.
    Jack Waaler, Corporation Counsel for the city of Urbana, of Champaign, for appellee.
    Rudnick & Wolfe, of Chicago (Perry J. Snyder man, Theodore A. Shapero, Theodore J. Novak and Steven H. Jesser, of counsel), for amicus curiae Home Builders Association of Greater Chicago.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, Henry A. Hauser and Morris Alexander, Assistant State’s Attorneys, and Daniel Brown, law student, of counsel), for amicus curiae County of Cook.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The city of Urbana sought a declaratory judgment and injunction precluding R & T, Inc. (the developer), from implementing a proposal for a planned unit development (PUD), to be constructed within the DA-mile zone surrounding the city, until the city had approved the plan as conforming to subdivision standards set out in city of Urbana ordinances. The developer had already obtained approval for the PUD from the County of Champaign, and both the developer and the county asserted that city approval of the development was not necessary. The circuit court of Champaign County agreed and dismissed the complaint; the appellate court reversed and ordered the complaint reinstated for further proceedings (62 Ill. App. 3d 869), and we granted the county and the developer leave to appeal.

Defendant R & T, Inc., owns a 50-acre tract of undeveloped land adjacent to the corporate limits of the city of Urbana on which it proposes to construct the PUD. The Champaign County zoning ordinance provides for PUDs as a special use. (Champaign County Zoning Ordinance, sec. 6.3 et seq.) Pursuant to that ordinance the developer submitted its plans to the county and obtained total approval for the project. Thereafter the city informed the developer that notwithstanding county approval the plans must be submitted to the city to insure compliance with city ordinances. The developer refused to seek city approval, and this litigation ensued. The development plan calls for the tract to be bisected by a road which the city asserts will be dedicated as a public street. The developer has asserted in an uncontested affidavit that the tract “has not been divided into lots, nor has a plat of subdivision been prepared, nor is one to be prepared at the present time.”

The Illinois Municipal Code enables a municipality to formulate a comprehensive plan for the development of land within municipal boundaries and contiguous areas and to implement the plan by ordinances:

“Every plan commission and planning department authorized by this division 12 has the following powers and whenever in this division 12 the term plan commission is used such term shall be deemed to include the term planning department:
(1) To prepare and recommend to the corporate authorities a comprehensive plan for the present and future development or redevelopment of the municipality. Such plan may be adopted in whole or in separate geographical or functional parts, each of which, when adopted, shall be the official comprehensive plan, or part thereof, of that municipality. This plan may include reasonable requirements with reference to streets, alleys, public grounds, and other improvements hereinafter specified. The plan, as recommended by the plan commission and as thereafter adopted in any municipality in this state, may be made applicable, by the terms thereof, to land situated within the corporate limits and contiguous territory not more than one and one-half miles beyond the corporate limits and not included in any municipality. Such plan may be implemented by ordinances (a) establishing reasonable standards of design for subdivisions and for resubdivisions of unimproved land and of areas subject to redevelopment in respect to public improvements as herein defined; (b) establishing reasonable requirements governing the location, width, course, and surfacing of public streets and highways, alleys, ways for public service facilities, curbs, gutters, sidewalks, street lights, parks, playgrounds, school grounds, size of lots to be used for residential purposes, storm water drainage, water supply and distribution, sanitary sewers, and sewage collection and treatment; ***.” (Ill. Rev. Stat. 1975, ch. 24, par. 11-12-5.)

Pursuant to this statute, the city of Urbana has adopted a comprehensive plan implemented by enactment of a subdivision-control ordinance, applicable within the city and the contiguous VA-mile zone, prescribing detailed standards for streets, alleys, curbs, sidewalks, drainage systems and sanitary sewers. (City of Urbana Ordinances, ch. 30.) In addition, the city’s zoning ordinance contains a section asserted by the city to regulate PUDs within the 114-mile zone. That section incorporates by reference the street standards of the subdivision ordinance. (City of Urbana Ordinances, art. XXIV, sec. 30.) The city contends that the developer must comply with both its subdivision-control ordinance and its PUD ordinance. Were this PUD subdivided into lots, the city’s subdivision ordinance would concededly require city approval. The dispute arises because subdivision of the tract into parcels is allegedly not now contemplated, although the possibility of such action in the future seems apparent from the wording of the developer’s affidavit.

The issue of whether the city or the county, or both, may regulate such a unitary development is one of first impression in this court. All parties are agreed that in pure zoning matters the county’s zoning ordinance preempts the city’s comprehensive plan and zoning provisions within the PA-mile zone. (City of Canton v. County of Fulton (1973), 11 Ill. App. 3d 171.) The parties also agree that in pure subdivision-regulation matters the city’s subdivision-control ordinance preempts any county ordinances within the PA-mile zone. (Krughoff v. City of Naperville (1977), 68 Ill. 2d 352; Petterson v. City of Naperville (1956), 9 Ill. 2d 233.) The demarcation of authority in the case of a PUD is not so clear, however, because a PUD involves both zoning and subdivision regulations in providing unitary development of sizeable tracts of land. “The technique of planned unit development is the development of land as a unit where it is desirable to apply regulations more flexible than those pertaining to other zoning classifications and to grant diversification in the location of structures and other site qualities.” Millbrae Association for Residential Survival v. City of Millbrae (1968), 262 Cal. App. 2d 222, 242, 69 Cal. Rptr. 251, 266.

Because the Hlinois Municipal Code does not define the term “subdivision,” we must look to the purposes of the enabling act (Ill. Rev. Stat. 1975, ch. 24, par. 11 — 12—5) to determine whether the power there granted municipalities to regulate streets, sidewalks, drainage, sewage, etc., within the PA-mile zone extends to a development like the one involved here. As this court said in Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 245:

“In ascertaining legislative intent, the courts should consider the reason or necessity for the enactment and the meaning of the words, enlarged or restricted, according to their real intent.”

The court in Petterson commented on the purpose of the enabling act as follows:

“We believe that the power to prescribe reasonable requirements for public streets in the interest of the health and safety of the inhabitants of the city and contiguous territory includes more than a mere designation of the location and width of streets as plaintiffs seem to contend. The legislature undoubtedly had in mind the complex problems connected with the development of territory contiguous to cities as bearing on the health and safety of all inhabitants within and without the municipality; that in such territory, in the interest of uniformity, continuity, and of public health and safety, the streets should be constructed in such a way as to afford reasonably safe passage to the traveling public and provide reasonable drainage in the interests of health. *** Considering the expressed object and purpose of the legislation, it is our conclusion that the provisions of the ordinance requiring curbs and gutters and proper drainage are within the powers conferred by the statute.” (9 Ill. 2d 233, 245-46.)

The statute clearly recognizes that a municipality has a legitimate interest in regulating the development of land near its borders to protect the health and safety of its people. There can be no doubt, of course, that the presence of a sizeable PUD on a city’s borders will have substantial impact on the city. This impact is not necessarily, eliminated or even diminished simply because the PUD is not divided into separate parcels. In our judgment the touchstone of a city’s power to impose subdivision controls is not the division of a tract into two or more parcels but its developmental impact upon existing facilities protecting the health and safety of the municipal residents. We conclude therefore that the present development is a subdivision within the statutory meaning.

Defendants contend the city’s PUD ordinance has no effect beyond the city boundaries because it is essentially a zoning ordinance, and zoning in the D/á-mile region is admittedly preempted by the county. Actually the PUD ordinance (City of Urbana Ordinances, art. XXIV) is a part of the Urbana zoning ordinance, and we agree with defendants that its provisions must yield to those of the county’s ordinance. (City of Canton v. County of Fulton (1973), 11 Ill. App. 3d 171.) Nor do we believe that the fact that the PUD ordinance in section 34.100B4 provides that street construction shall conform to chapter 30 of the Urbana City Code (the subdivision ordinance) or that section 34.98 entitled “Qualification and General Review Criteria” in paragraph B5 contains a catch-all provision “That all other Articles of the Zoning Ordinance, other than those exceptions made in this Article, be met” serves to incorporate therein the provisions of the subdivision ordinance so as to eliminate the definitional barrier to the city’s position which exists in that ordinance.

Section 30.2 of the subdivision ordinance (Urbana City Ordinances, ch. 30, sec. 30.2) provides:

“For the purposes of this chapter, the word ‘subdivision’ shall mean the dividing of a tract of land into two or more lots, parcels, or tracts for the purpose, either immediate or future, of sale or building development, including a re-subdivision for any such purpose.” (Urbana City Ordinance, ch. 30, sec. 30.2.)

We are not convinced that the city lacks power to extend subdivision controls to the present development, but we simply cannot construe an ordinance which by its terms applies only to land which is divided “into two or more lots, parcels or tracts” as embracing an undivided 50-acre tract.

We hold therefore that the developer is not required to comply with the standards of the city’s subdivision ordinance. Should the developer at any future time divide the tract into lots, he would, of course, be required to seek the city’s approval notwithstanding the county’s prior approval of his PUD plans.

Accordingly the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 51024.
    DELBERT E. WILLIAMS, Appellee, v. THE DEPARTMENT OF LABOR et al., Appellants.

      Opinion filed May 18, 1979.

      William J. Scott, Attorney General, of Springfield (Joseph D. Keenan III, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Timothy E. Campbell, of Godfrey, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This matter arises out of a claim for unemployment insurance benefits, and involves, in this court, the authority of the administrative agency to limit the fee charged by the claimant’s attorney. The Department of Labor appeals from an order of the circuit court of Madison County which declared section 1200 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 530) to be an unconstitutional delegation of legislative power (Ill. Const. 1970, art. IV, sec. 1).

On August 22, 1976, Delbert Williams (claimant) filed a claim with the Division of Unemployment Insurance of the Department of Labor for the purpose of obtaining unemployment insurance benefits. The claim was denied by both the claims adjudicator and the referee. On March 7, 1977, the Board of Review of the Department of Labor decided that the claimant was ineligible for benefits on the ground that he had left work voluntarily without good cause. Within the requisite 35 days, the claimant, by his attorney, Timothy F. Campbell (attorney), filed a complaint for administrative review in the circuit court of Madison County. Following a hearing, the circuit court, on November 9, 1977, reversed the decision of the Board of Review, finding it contrary to the manifest weight of the evidence.

By way of a supplemental proceeding, the claimant’s attorney, on November 16, 1977, sent the Board of Review a letter which requested- that his attorney fee be approved and indicated that his fee was $750. While his fee request was still pending before the Board of Review, the attorney, in behalf of the claimant, petitioned the circuit court for a writ of mandamus to compel the Department to pay the claimant the benefits to which he was entitled. On January 17, 1978, the Board of Review sent the attorney a letter which stated that the Board had approved the reduced sum of $500 as the permissible fee to be charged the claimant. Three days later, the claimant’s employer petitioned the circuit court to reconsider and vacate its decision which had granted benefits to the claimant. Shortly thereafter, the attorney sent a letter to the Board of Review requesting reconsideration of the fee limitation. In this letter, the attorney notified the Board that he and the claimant had signed a document captioned “Authority to Represent,” whereby the claimant ratified an agreement, made in April of 1977, to pay his attorney a contingent fee of one-third of his total recovery. The document stipulated that, contingent upon approval by the Board, the claimant was willing to pay $1,282 in accordance with the contingent-fee plan (his recovery totaled $3,848) and in consideration of the attorney’s waiver of the $500 fee.

The circuit court, on February 22, 1978, denied the employer’s petition to vacate and continued the claimant’s petition for a writ of mandamus (notwithstanding acknowledgement by the claimant that he had received the $3,848 in benefits). Two days later, the Board of Review sent the attorney a letter stating that it was denying the attorney’s request for reconsideration of the $500 fee limitation. Pursuant to this final decision by the Board, the claimant, by his attorney, filed an amended complaint in the circuit court. This amended complaint purported to be ancillary to the original action for administrative review and sought a reversal of the Board’s fee limitation.

On May 29, 1978, the circuit court entered its order which found the applicable statutory provision to be “an unconstitutional delegation of legislative power to an administrative agency in that the delegation is overbroad without any standards or guidelines by which the agency should be governed in arriving at a decision as to attorney fees.” In so finding, the court reversed the Board’s decision and approved the contingent fee sought by claimant’s attorney. The Department’s appeal was taken directly to this court pursuant to Supreme Court Rule 302(a)(1) (58 Ill. 2d R. 302(a)(1)). Because we hold that the claimant lacked standing to challenge the Board’s decision to reduce the fee requested by his attorney, we do not reach the question of the validity of section 1200 of the Unemployment Insurance Act (Ill. Rev. Stat. 1977, ch. 48, par. 530).

At the outset, we note that this case has somehow gravitated toward a most peculiar procedural juncture. The trial court brief which accompanied the claimant’s amended complaint indicates that the constitutional challenge was raised by the claimant, but in behalf of the attorney. In this court, however, the claimant, apparently recognizing the shortcoming of raising a constitutional challenge in behalf of another, addresses the constitutional issue in his own behalf. Either way, the case, in essence, involves an attorney, whose fee was limited by an administrative decision, being represented by his client, whose relief, if he prevails, is to pay $1,282 rather than $500 to the attorney. The claimant intimates that this procedural irony is inevitable because the matter of attorney fees under section 1200 of the Unemployment Insurance Act is a continuation of the original claim for unemployment benefits, to which the attorney was not a party.

Section 1100 of the Unemployment Insurance Act provides, in relevant part:

“Any decision of the Board of Review *** shall be reviewable only under and in accordance with the provisions of the ‘Administrative Review Act,’ provided that judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his administrative remedies as provided by this Act. *** The term ‘administrative decision ’ is defined as in Section 1 of said ‘Administrative Review Act.’’’ (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 48, par. 520.)

Reference to section 1 of the Administrative Review Act reveals that an “administrative decision” is any determination of the agency “which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 110, par. 264.) This court has consistently held that the right to review such administrative decisions is limited to parties of record before the administrative agency whose rights, duties or privileges were adversely affected by the decision. Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill. 2d 16, 20; 222 East Chestnut Street Corp. v. Board of Appeals (1956), 10 Ill. 2d 130, 132; Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 593.

An exception to the above rule is found in Collins v. Industrial Com. (1957), 12 Ill. 2d 200, where this court had an opportunity to construe a similar statutory limitation on attorney fees under the Workmen’s Compensation Act (see Ill. Rev. Stat. 1955, ch. 48, par. 138.16). There, following the award of workmen’s compensation benefits to a claimant, the Industrial Commission fixed the amount of fees sought from the claimant by the claimant’s attorneys at $300. The attorneys, in their own behalf, sought review of the fee limitation. In response to the contention that review was limited to parties and that the claimant’s attorneys were not parties, this court reasoned:

“Even if the statutory jurisdiction of the circuit court was expressed in terms of parties, instead of in terms of issues, we think that the attorneys were parties to the supplemental hearing at which their fees were determined.” (Collins v. Industrial Com. (1957), 12 Ill. 2d 200, 203.)

The sensible conclusion to be drawn is that when, as here, a statute allows for a supplementary proceeding and provides for a limitation of the fee which an attorney may charge a client, it is the attorney who logically proceeds as the real party in interest for the purpose of challenging the fee limitation. Practical application of the Unemployment Insurance Act contemplates just such a procedure.

It is only a partial answer, however, to conclude that the proper procedure was for the aggrieved attorney himself to seek review of the Board’s decision to limit his fee to $500. The precise question which we must resolve is whether it was a permissible, alternative procedure for the claimant to seek review of the Board’s decision. We hold that it was not and that the claimant’s lack of standing is fatal to the instant request for administrative review.

As previously stated, review of administrative decisions is limited to those who were both party to the agency proceeding and aggrieved by its decision. The claimant was, of course, a party to the Board’s decision which denied him unemployment benefits and, we believe, a party to its decision which limited the fee of his attorney to $500. However, the claimant was not a party aggrieved by the Board’s latter decision. The claimant stood only to benefit financially from the decision limiting the amount of fee which his attorney could charge him for services rendered. The claimant’s interest regarding the attorney fee was adverse not to the Board’s decision but to his attorney’s attempt to nullify the fee limitation. Assuming that the attorney had sought review in his own behalf under the Administrative Review Act, the claimant would properly have been made a defendant, rather than a party plaintiff. Ill. Rev. Stat. 1977, ch. 110, par. 271.

Claimant maintains that his legal right to contract with an attorney, on terms agreeable to him, was adversely affected by the Board’s decision which limited the fee to an amount less than that which he was willing to pay. Section 1200 of the Unemployment Insurance Act provides that a claimant may be represented by counsel or other duly authorized agent and that such counsel or agent may not charge or receive for such services an amount in excess of that approved by the Board. (Ill. Rev. Stat. 1977, ch. 48, par. 530.) Indeed, the “Authority to Represent,” whereby the claimant waived the $500 fee limitation and agreed to pay one-third of his total recovery, was expressly made contingent upon approval by the Board. Consequently, the Board’s decision to deny approval of the agreement and to retain the fee limitation at $500 was consistent with the terms agreeable to the claimant.

Finally, the claimant’s reference to Castleman v. Civil Service Com. (1965), 58 Ill. App. 2d 25, is totally misplaced. There, the court held that an agency decision to reinstate a discharged policeman could not be contested on administrative review by an intervening taxpayer whose interest in the decision was no more direct or substantial than that of any other citizen. The claimant asserts that he, in contrast, has a direct interest in the outcome of the attorney fee matter. We do not dispute the claimant’s interest in this matter. Obviously, he has a greater interest than the average citizen in the fee he must pay his attorney. However, the question is not whether claimant is directly involved in the Board’s decision, but whether he is aggrieved by it. To that question, Castleman is inapposite.

For the reasons stated, we hold that the claimant lacks standing to seek administrative review of the Board’s decision. As a result, we hereby vacate the judgment order of the circuit court and remand the cause with directions to dismiss the claimant’s amended complaint for administrative review.

Judgment vacated; cause remanded, with directions.


text:
    (No. 50620.
    LYNCH SPECIAL SERVICES, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Leo Shells, Appellee.)

      Opinion filed March 20, 1979.

    Rehearing denied May 30, 1979.

      Jay M. Shapiro and Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Miles N. Beermann, of counsel), for appellant.
    Chester L. Blair, Chartered, of Chicago (Gilbert C. Schumm, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

An Industrial Commission arbitrator awarded claimant Leo Shells $117.40 per week for a 10-week period of temporary total incapacity for work and the further sum of $91.80 per week for 58 3/4 weeks as compensation for a 25% permanent and complete loss of use of the left arm found to have resulted from an industrial accident on January 5, 1975. (Ill. Rev. Stat. 1973, ch. 48, par. 138 et seq.) Both claimant and the employer, Lynch Special Services (Lynch), sought review by the Commission which affirmed the award for temporary total incapacity and enlarged the award for loss of use of the left arm to 40%. Respondent employer sought certiorari from the circuit court of Cook County, which confirmed the Commission award. The case is before us pursuant to our Rule 302(a). 58 Ill. 2d R. 302(a).

Claimant, who was employed by Lynch as a security guard, had been assigned to a vacant warehouse situated at 2222 South Calumet in Chicago for some three weeks at the time the accident occurred. He worked the 7 a.m. to 3:30 p.m. shift. The guard on duty was ordinarily alone in the warehouse. Clarence Sadler, Lynch’s “Captain of the Guard,” testified that when security guards were hired, their duties and the company rules were explained to them, including the rule prohibiting guards from leaving their posts during their tours of duty. He stated that “Every building has a different set of rules” and “The rules of the building are posted.” He also testified that a copy of the building rules was in the guard’s desk drawer although admitting he had not seen it there. Claimant’s duties involved making “hours rounds,” during which he punched clocks located at various spots in the warehouse. The witness also testified that there was a hot plate and coffee pot at claimant’s “station” near the warehouse door, and that claimant was free to drink coffee “all day” at his station if he wanted to but could not leave the building to do so; that guards were not relieved for coffee or lunch breaks, and that they brought their lunches and ate them at their posts at whatever time they chose. The witness stated he had not examined the coffee pot or tested the hot plate; he also testified that he had not personally hired or instructed claimant, who was an “old employee” with six or eight years’ experience whose hiring preceded the witness’ employment with Lynch.

Claimant testified that he had worked for Lynch about nine years. On the day of the accident he arrived at the warehouse about 6:45 a.m. and left about 7:50 to go to a nearby restaurant for a cup of coffee and a donut, which he said was his breakfast. Six or seven minutes later, while walking back carrying the coffee and donut, he slipped and fell on the icy sidewalk, breaking his left arm. The restaurant, claimant stated, was on Prairie Street about a block and a half from the warehouse. Claimant further testified that on his first day at the warehouse a fellow employee, whose first name was Felix but whose surname was unknown to claimant, and who was a sergeant of the guard, told him what his duties were. When asked “What if you don’t bring your lunch,” claimant testified that Felix told him, “You can always go to the restaurant and pick up a cup of coffee or roll or sandwich, whatever you want and come straight back.” Felix did not testify. Claimant also testified that Captain Sadler had told him he could leave the warehouse to get coffee. This was denied by Sadler, who testified that he had terminated claimant’s employment with Lynch because of the violation of the rule against leaving his post. Claimant stated nine months later at the hearing, “I don’t know whether I’m fired or not,” although he hadn’t tried to go back to work when told by his doctor to do so in May. Claimant commenced receiving unemployment compensation payments in July.

It is fundamental in our workmen’s compensation law that only injuries “arising out of” and “in the course of” employment are compensable. (Ill. Rev. Stat. 1975, ch. 48, par. 138.2.)

“The phrases ‘arise out of’ and ‘in the course of’ are used conjunctively, thus requiring the existence of both elements to make the Workmen’s Compensation Act applicable. The phrase ‘in the course of’ relates to the time, place and circumstances of the injury, while the phrase ‘arising out of’ refers to the requisite causal connection between the injury and the employment.” (Fire King Oil Co. v. Industrial Com. (1976), 62 Ill. 2d 293, 294.)

Those phrases were discussed at greater length in Chmelik v. Vana (1964), 31 Ill. 2d 272, 277-78, cited by both parties, where the court said:

“The words ‘arising out of’ refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury [citations], and in order for an injury to come within the act it must have had its origin in some risk connected with, or incidental to, the employment, so that there is a causal connection between the employment and the injury. [Citations.] The injury need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence. [Citation.] Ordinarily, an injury does not arise out of the employment unless the danger causing the injury is peculiar to the work and the risk is not one to which the public generally is subjected [citation]; however, if an employee is exposed to a risk common to the general public to a greater degree than other persons by reason of his employment, the accidental injury is said to arise out of his employment. [Citations.]
The words ‘in the course of the employment, ’ on the other hand, refer to time, place and circumstances under which the accident occurred [citations], and it is stated generally that an accidental injury is received in the course of the employment when it occurs within the period of employment at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto. [Citations.] ”

While these principles of workmen’s compensation law determine the compensability of injuries, there is considerably greater uniformity in their statement than in their application. To the limited extent that generalities are appropriate, it can fairly be said that lunchtime injuries suffered away from the employer’s premises by employees with fixed hours and place of employment and unpaid lunches, and who are not engaged in employer errand running or other employment-related activity, are not compensable. Again in a general way, such injuries can be characterized as governed by the rules applicable to injuries suffered while going to or from work. (1 A. Larson, Workmen’s Compensation sec. 15.51 (1978).) Conversely, an employee injured while going to or from or during, paid or unpaid lunches on the employer’s premises will usually be compensated. (1A A. Larson, Workmen’s Compensation sec. 21.21(a) (1979).) Within the broad area between these two extremes are many differing factual situations with varied judicial holdings.

For the purpose of resolving this case, claimant’s trip to the restaurant must be viewed as having been made with the employer’s consent, and we need not be concerned about deviations from the terms of employment. Claimant testified that sergeant of the guard Felix, his immediate superior, had told him he could get coffee, donuts or anything he wanted from the restaurant and that Captain Sadler told him the same thing. Although the latter denied this conversation, claimant’s testimony regarding his conversation with Felix was not denied, and the arbitrator and the Commission apparently accepted it. We cannot say their action in doing so was contrary to the manifest weight of the evidence. County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19; Warren v. Industrial Com. (1975), 61 Ill. 2d 373, 376; Rysdon Products Co. v. Industrial Com. (1966), 34 Ill. 2d 326, 330.

The question we must answer, then, is whether a Commission award to an employee injured in a fall on an icy sidewalk while returning from a permissive trip to a restaurant for coffee and a donut is contrary to the manifest weight of the evidence. In a somewhat similar case, Schwartz v. Industrial Com. (1942), 379 Ill. 139, this court denied compensation. There the deceased employee was manager or assistant manager of a store which on Saturdays remained open until midnight. Decedent was on continuous duty from its opening to closing. No food or place to eat it was provided by the employer, but the employees were at liberty to go out for meals when and where they chose. When decedent went out for a meal he always left word where he could be reached if his presence at the store was required. On the Saturday afternoon in question his fiancee joined him at the store and they proceeded to a nearby restaurant after decedent informed another employee where he would be. After eating his meal decedent returned to the store. He subsequently died of food poisoning resulting from the restaurant food. This court held the death occurred in the course of employment since the contaminated food was ingested at a time when decedent’s employment was not “suspended or discontinued.” (379 Ill. 139, 146.) However, the court held the death did not arise out of the employment because of the absence of any causal relationship between the employment and the injury, and the necessity that the causative danger be peculiar to the work and not common to the neighborhood.

“Partaking of contaminated food in a nearby restaurant cannot be said to have any causal relation to the employment of the deceased in the retail store of plaintiff in error. The causative danger — the contaminated food — was not peculiar to the work or incidental to the employment because it did not belong to, nor was it in any way connected with, what the deceased had to do in fulfilling his contract of service. The origin or cause of the accident did not belong to and was not connected with the duties of the deceased under his contract of service.” (379 Ill. 139, 147.)

(See also Pearce v. Industrial Com. (1921), 299 Ill. 161.) A divided Supreme Court of Alabama reached a similar result in In re Union Camp Corp. v. Blackmon (1972), 289 Ala. 635, 270 So. 2d 108, and representative cases from various jurisdictions in which compensation was denied are collected by Professor Larson in volume 1, section 15.51, footnote 70.

Contrary to the result reached by this court in Schwartz, some courts have affirmed the award of compensation to employees suffering off-premises injuries during lunch hours or coffee breaks where the employee is paid for the time so spent. Notable among these are the California cases Rankin v. Workmen’s Compensation Appeals Board (1971), 17 Cal. App. 3d 857, 95 Cal. Rptr. 275, and cases there cited, and Western Greyhound Lines v. Industrial Accident Com. (1964), 225 Cal. App. 2d 517, 37 Cal. Rptr. 580. The fact that the employee was paid during the lunch or coffee break was there thought sufficient to render compensable any injury from reasonable causes during those periods. The refreshing effect of the food or drink consumed during those periods is viewed by some courts as enhancing the personal comfort, health and efficiency of the employee, thus also benefiting the employer. A number of cases emphasizing this factor are cited in Mr. Chief Justice Heflin’s dissent in Union Camp. Other cases, some of which are summarized in the court’s opinion in Shoemaker v. Snow Crop Marketers Division of Clinton Foods, Inc. (1953), 74 Idaho 151, 258 P.2d 760, emphasize the shortness of the lunch or coffee period and the employer’s direction, if present, to “hurry back” as significant factors. The personal comfort doctrine is discussed by Professor Larson in volume 1A, section 21, and the “coffee break” cases at volume 1, section 15.54. He believes the guiding principle in these categories should be whether “the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the intervals can be deemed to have retained authority over the employee ***.” (See 1 A. Larson, Workmen’s Compensation sec. 15.54 (1978).) If so, the injury ought to be compensable.

We believe the circumstances here fall short of compensability. The factors of employer-furnished transportation (American Hardware Mutual Insurance Co. v. Burt (1961), 103 Ga. 811, 120 S.E.2d 797) or food facilities (Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38; Sweet v. Kolosky (1960), 259 Minn. 253, 106 N.W.2d 908) or food (Krause v. Swartwood (1928), 174 Minn. 147, 218 N.W. 555; Goldberg v. Gold Medal Farms, Inc. (1963), 18 App. Div. 2d 951, 237 N.Y.S.2d 656) are not present here. Nor was claimant doing any errands for his employer (Kahn Bros. Co. v. Industrial Com. (1929), 75 Utah 145, 283 P. 1054) or going to the restaurant at the employer’s suggestion or request (Krause).

In our judgment, the result here is governed by our earlier decision in Schwartz. The only difference in the cases which might be thought to support a different result is that the period of time away from work is shorter here. That fact, alone, is insufficient in our opinion to free this case from the precedential influence of Schwartz. Certainly the cause of the injury here — the icy sidewalk upon which claimant fell — was no more a hazard peculiar to claimant’s employment than the contaminated food in Schwartz.

Claimant, however, relies heavily upon Torbeck v. Industrial Com. (1971), 49 Ill. 2d 515, where this court affirmed an award to an employee injured whHe crossing a public street between the store where she worked and the restaurant from which she intended to bring her supper back to the store. There is, however, a crucial difference between Torbeck and this case. In Torbeck the employee had not brought her supper because she did not learn until 6:30 p.m. that she would have to work until 9 p.m. instead of 7 p.m. At the time her employer told her of this, the employer specifically directed the employee to get food herself while the employer tended the store and bring it back to the store to be eaten. Because the employee in Torbeck had not known when she came to work that day that she would have to work late that evening, she could not be said to have voluntarily chosen to purchase food at the restaurant rather than to bring it with her. Consequently, said the court:

“The situation thus presented differs from the ordinary case of an injury suffered by an employee during his lunch hour. This claimant’s presence in the street at the time of her injury was occasioned by the demands of her employment.” Torbeck v. Industrial Com. (1971), 49 Ill. 2d 515, 516-17.

In the case before us, even though the Commission believed, as it apparently did, claimant’s testimony that his superiors had told him he could go to the restaurant for coffee and food “and come straight back,” there is a fundamental difference. In Torbeck the employee had no knowledge when she came to work that she would be required to work late so that her employer could play bingo that night. When she learned of it and was told by the employer to get her supper at the restaurant and bring it back to the store while the employer waited, the employee had no choice but to do so or go hungry. Here, however, claimant knew his working hours when he left home; he could have brought his food and eaten at his station as guards ordinarily did. That he chose instead to go to the restaurant neither benefited nor accommodated his employer. In fact, it left the warehouse unprotected during his absence.

In our judgment claimant’s injury cannot be said to have arisen out of and in the course of his employment to any greater extent than can that of the ordinary fall on the ice suffered by an employee who voluntarily elects to go outside his place of employment to purchase or eat his food.

The judgment of the circuit court of Cook County is reversed and the award of compensation vacated.

Judgment reversed; award vacated.


text:
    (No. 51028.
    JUDITH WOLFE, Appellant, v. JAMES WOLFE, Appellee.

      Opinion filed March 14, 1979.

    Rehearing denied May 30, 1979.

      Irving Lewis, of Chicago, for appellant.
    James E. Wolfe, of Winnetka, pro se.

   MR. JUSTICE MORAN

delivered the opinion of the court:

After Judith Wolfe, plaintiff, filed a complaint for divorce in the circuit court of Cook County, James Wolfe, defendant, counterclaimed for an annulment of the marriage on the basis of fraud. The case was tried before an advisory jury. At the close of the evidence, upon motion of the defendant, the trial court directed a verdict for defendant on plaintiff’s complaint. The jury returned a verdict in favor of defendant on his counterclaim, and a judgment granting an annulment was entered. Subsequently, on motion of plaintiff, the trial court determined that the jury’s verdict was contrary to the law and evidence. It vacated the judgment and dismissed defendant’s counterclaim. On appeal (62 Ill. App. 3d 498), a majority of the appellate court reversed the trial court’s ruling on plaintiff’s post-trial motion, directed reinstatement of the judgment for annulment, and issued a certificate of importance to this court pursuant to Rule 316 (58 Ill. 2d R. 316).

In 1963, the parties discussed marriage but, when plaintiff informed defendant that she had previously been married and divorced, defendant explained that he, a Roman Catholic, was forbidden by his religion to marry her. In November of that year, however, plaintiff told defendant that she had learned from a friend in Arizona that her former husband had been killed in an auto accident and that she would receive a copy of the death certificate. Under these circumstances, defendant’s church considered plaintiff a widow and defendant was free to marry her. Preparatory to marriage, plaintiff underwent conversion to Catholicism and, as a requirement thereof, executed a Sponsa in which she stated, under oath, that her former husband was dead.

Shortly before the couple married, in March of 1965, plaintiff had shown defendant a copy of the purported death certificate of her former husband. A child was bom of the marriage in 1966.

In November 1973 the couple separated, and the following month, plaintiff sued for divorce. On May 10, 1974, defendant filed a counterclaim for annulment which alleged that plaintiff had fraudulently induced him to consent to marriage by misrepresenting that her former husband was dead.

At trial, defendant testified that, because of his religious convictions, he would not have married plaintiff had he not believed her to be a widow, and that he first learned that her former husband was still alive on February 1, 1974. The ex-husband was, in fact, called as a witness. The Sponsa and the copy of the purported death certificate were introduced into evidence. During examination by defendant’s counsel, plaintiff admitted that, at the time she swore to and signed the Sponsa, she knew that her former husband was not dead. When questioned about the purported death certificate, plaintiff invoked the constitutional privilege against self-incrimination.

The evidence in this case clearly and convincingly showed that plaintiff had perpetrated a fraud upon defendant in order to obtain his consent to the marriage. Although such fraud would render the ordinary contract void, a marriage contract can be voided only if the nature of the fraud itself affects the essentials of the marriage. What constitutes the “essentials” of marriage cannot be expressly delineated, for what is essential to one marriage may not be equally significant to another. Whether a fraud goes to the essentials of a marriage must be determined on the basis of the facts in an individual case.

This court was faced by such a determination in Lyon v. Lyon (1907), 230 Ill. 366, wherein the wife had falsely represented to her husband, during their engagement, that she had not had an attack of epilepsy for eight years. The husband alleged that the representation was made with the intention of inducing him to marry her, and that he had relied upon the truth of the statement in marrying. Affirming the dismissal of the husband’s action for annulment for want of equity, the court stated:

“The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation, — of something making impossible the performance of the duties and obligations of that relation or rendering its assumption and continuance dangerous to health or life. [Citations.] ” Lyon v. Lyon (1907), 230 Ill. 366, 371.

In Bielby v. Bielby (1929), 333 Ill. 478, wherein it was determined that no fraud existed, the court, in dicta, repeated the above quote from Lyon and further stated:

“The degree of fraud sufficient to vitiate an ordinary contract will not afford sufficient grounds for the annulment of a marriage. It is not sufficient that the complainant relied upon false representations and was deceived. False representations as to fortune, character and social standing are not essential elements of the marriage, and it is contrary to public policy to annul a marriage for fraud or misrepresentations as to personal qualities.” 333 Ill. 478, 484.

With this background in mind, we turn to the issue before us: Did the fraud, under the circumstances of this case, go to the essentials of the marital relationship, rendering it impossible for defendant to perform the duties and obligations of his marriage?

In Jordan v. Jordan (1975), 115 N.H. 545, 345 A.2d 168, the plaintiff, a Roman Catholic, was granted an annulment on the basis that, at the time of her marriage, she did not know that her husband had been previously married; that she would not have married him had she known, and was prohibited by her religious belief from living with him thereafter. In Bilowit v. Dolitsky (1973), 124 N.J. Super. 101, 304 A.2d 774, plaintiff, a practicing Orthodox Jew, married on the basis of defendant having represented that he shared that religious conviction. Upon learning that defendant had misrepresented his faith, plaintiff sought an annulment. The court granted the annulment and stated:

“To plaintiff the religious beliefs and convictions of her husband were essential to her marriage. She could not have properly performed the duties of a wife and mother, following the rules and teachings of her faith, without the support of a husband holding the same beliefs. Defendant, having substantially and knowingly misrepresented the same to her, and plaintiff having relied thereon in entering into the marriage, this court holds the fraud to which plaintiff was subjected to be ‘gross and far-reaching’ ***. [Citations.]” 124 N.J. Super. 101, 104, 304 A.2d 774, 776.

Sub judice, defendant has established that he is a loyal practitioner of his faith and has lived according to the rules and dictates of his church. In the absence of certain modifying circumstances, which apparently did not exist here, the defendant’s religion prohibits marriage with a divorced person whose former spouse is still living. Under the facts of this case we believe that this marriage would not have occurred but for the fraud, executed for the purpose of inducing defendant’s consent. Furthermore, since discovering the fraud, defendant is unable to continue marital cohabitation with plaintiff. It can be seen that this disability is the product of a canon of defendant’s religion, placed upon him by his church. This is to be distinguished from a mere subjective, personal aversion. (See Kingsley, Fraud as a Ground for Annulment of a Marriage, 18 S. Cal. L. Rev. 213, 228 n.95 (1945).) To deny defendant an annulment would cause the defrauded party to bear the consequences of the deception and allow the deceiver to proceed with impunity.

Under the circumstances of this case, we hold that the fraud goes to the essentials of the marital relationship, defendant’s knowledge of which has rendered it impossible for him to continue to perform the duties and obligations of his marriage. As stated by the appellate court, “It is not in the public interest to protect such a marriage to the serious detriment of the defrauded party.”

We recognize that the parties lived together as husband and wife for several years, and that a child of the marriage exists. Although we consider lengthy marital cohabitation to be a factor militating against the granting of an annulment, we do not consider it to be controlling here. Similarly, the existence of a child, although a factor, will not bar an annulment inasmuch as the status of the child, under Illinois law, is unchanged. See Ill. Rev. Stat. 1975, ch. 89, par. 17a, presently found at Ill. Rev. Stat. 1977, ch. 40, par. 303.

Based upon the foregoing, we conclude that defendant is entitled to an annulment. The judgment of the appellate court is, therefore, affirmed.

Judgment affirmed.