author: JUSTICE KARNS JUSTICE WELCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES H. WARD, Defendant-Appellant.
    Fifth District
    No. 81—563
    Opinion filed February 9, 1983.

      WELCH, J., specially concurring.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Robert C. Cook, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, James Ward, was convicted of murder of a four-year-old boy after a jury trial in the circuit of St. Clair County and sentenced to 25 years’ imprisonment. He appeals, contending that the trial court improperly refused his tendered instructions on involuntary manslaughter and improperly excluded evidence of prior child abuse on the part of the deceased’s mother, Harriet Young, who had previously been convicted of the murder of the child. He also assigns as error certain prejudicial argument of the prosecution, to which his objection was overruled, that stated to the jury, in essence, that the basis of the conviction of the child’s mother was a determination by that jury that the mother was accountable for the acts of defendant, which in fact caused the child’s death.

Montez Moore lived with his mother, Harriet Young, and a younger brother in East St. Louis. Defendant was a boyfriend of Young, staying at her home periodically. Defendant visited Young Monday, February 16, and Tuesday, February 17, the week of Montez’ death. Montez appeared to be in good health both days. At 2:30 or 3 a.m. on Thursday morning, defendant came to Young’s home. When he arrived, Young told him Montez had urinated in bed and had put cocoa in the dog’s pail. Defendant asked if she had whipped him and Young replied that she had. Defendant did not punish Montez although Young asked him to do so. Defendant stayed and slept at the house, awakening around 11 a.m. Thursday morning. Young then left the house to go to the store but soon returned.

The circumstances surrounding the fatal beating are disputed. Young testified that when Montez awoke she whipped him with a mop handle for urinating in bed. She did not “beat him.” She testified that she saw defendant then beat Montez twice; around 12 p.m. defendant hit Montez severely on his chest, stomach and back -with the mop handle. The beating was punishment for urinating in bed. An hour later defendant beat Montez again, this time for no apparent reason. Defendant and Montez were sitting on Montez’ bed when defendant hit the child on the chest and stomach with the mop handle. Defendant testified that he did not touch Montez. He stated that after Young went to the store, he went back to sleep and slept until he left the house at 4 p.m.

Mary Owens, sister of defendant, arrived at Young’s home at the same time defendant was leaving. She talked with Young and then laid down to rest. She was awakened by her son who told her Montez would not wake up. Young had left the room while Owens slept and was with Montez attempting to awaken him. Owens recalled that the child felt like ice. An ambulance was called.

Montez was pronounced dead on arrival at the hospital at 8:20 p.m., February 19. The examination revealed that his body was covered with multiple linear bruises that could have been caused by beating with a mop handle. His face, arms and buttocks were swollen and discolored. He appeared to be malnourished. The cause of death was respiratory arrest from a cerebral edema and injuries to the lungs accompanied by aspiration of milk into the airway. The fatal injuries were inflicted by beating the child with a blunt instrument. The pathologist was of the opinion that the bruises were administered in a single beating.

Young went to the hospital and was questioned there about the boy’s injuries. She acknowledged at trial that she gave hospital personnel four or five different explanations for the injuries to cover for herself and for defendant and because defendant told her to tell a story. Young was subsequently convicted of murder in a separate trial.

Defendant turned himself in when he heard of Young’s arrest. Officer Moore of the East St. Louis Police Department testified his investigation revealed that both Young and defendant were involved in the beating. A broken mop handle, a window shade roller and a shoe were taken from Young’s home as possible weapons.

While in custody, defendant asked to see Viola Moore, grandmother of the child. Moore came to the station and talked with defendant. Officer Moore testified that he overheard parts of the conversation and heard defendant say that he didn’t mean to do it; he had beaten Montez for putting some cocoa in the dog’s water. When he heard Viola Moore ask why they didn’t get medical help for the boy, Detective Moore stopped the conversation and asked Viola Moore to leave. Ms. Moore testified to the same conversation, adding that defendant said he started beating Montez with a shoe, then became angry and used a stick.

Defendant acknowledged that Moore came to the station but denied both asking for her and talking to her.

There was testimony that both Young and defendant had beaten the children previously. Three witnesses, two sisters of defendant, testified that defendant babysat for their children and that he never harmed them. Testimony also revealed that Young’s oldest child was taken from her by the Illinois Department of Children and Family Services. Details of the reason for this action were excluded by the trial court.

Defendant’s principal assignment of error is the refusal of the court to give his tendered instruction on involuntary manslaughter. At the instruction conference, the court noted that defendant had testified that he did not beat the child and reasoned that if he had admitted that he had beaten Montez, then the determination of whether his acts were performed recklessly or with the requisite mental state to constitute murder would be for the jury to determine, but inasmuch as he had denied the beating, the issue for the jury to decide was whether he was not guilty or guilty of murder.

However, it is well settled that if there is any evidence, regardless of its source, which tends to prove that defendant is guilty of the lesser-included crime of involuntary manslaughter, he is entitled to have the jury instructed on the lesser crime even though he has denied that he performed the act in question or defended on the basis of accidental homicide. People v. Scalisi (1926), 324 Ill. 131, 154 N.E. 715; People v. Farmer (1977), 50 Ill. App. 3d Ill. 365 N.E.2d 177; People v. Dortch (1974), 20 Ill. App. 2d 911, 314 N.E.2d 324; and People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389.

Murder is defined as the intentional killing of another without lawful justification or the killing of another intending to do great bodily harm or knowing that the acts performed will cause death or create a strong probability of death or great bodily harm (111. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)). Involuntary manslaughter is the unintentional killing of another where the “*** acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm ***” and are performed recklessly. Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a).

A person intends a result “*** when his conscious objective or purpose is to accomplish that result ***.” (111. Rev. Stat. 1981, ch. 38, par. 4 — 4.) A person acts with knowledge of “[t]he result of his conduct *** when he is consciously aware that such result is practically certain to be caused by his conduct.” Ill. Rev. Stat. 1981, ch. 38, par. 4 — 5(b).

Recklessness is defined in the Criminal Code of 1961 as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. ***.” Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.

Thus it can be seen that the element distinguishing murder from involuntary manslaughter is the mental state of the accused. Murder requires the presence of an intent to kill or knowledge that death or great bodily harm will result from the conduct of the defendant. Involuntary manslaughter is committed when the actor consciously disregards a substantial and unjustifiable risk that his acts are such as are likely to cause death or great bodily harm.

We believe this case is unlike People v. Dunnigan (1980), 89 Ill. App. 3d 763, 412 N.E.2d 37, and People v. Robertson (1976), 43 Ill. App. 3d 143, 356 N.E.2d 1180, relied upon by the trial court, where the reviewing court found that the presence of multiple stab wounds inflicted with a knife, a lethal weapon, negated any possibility that the defendant acted recklessly rather than with intent to kill. Further, in Dunnigan the jury was instructed on the lesser crime of involuntary manslaughter. The court noted that it was for the jury to determine if the defendant was guilty of murder or manslaughter.

Here it is not clear whether the fatal injuries were administered with hands or fists, or a shoe or stick, or a combination of both. Unfortunately, this pattern of child abuse resulting in death is not uncommon in the reported cases. The common holding of these cases is that it is for the jury to decide whether the defendant was guilty of murder or involuntary manslaughter or whether the death resulted from accidental homicide.

In People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398, defendant’s three- or four-year-old daughter died from brain swelling, caused by trauma. Defendant, the deceased’s father, in an oral and written statement stated that he had punished the child for drinking from the toilet bowl by striking her with a belt, an extension cord and by “bumping her head on the wall.” At trial, while admitting he made these statements, defendant testified that he did not push the child’s head against the wall, rather he pushed her to prevent her from slipping in a puddle of water on the floor, that she fell injuring herself and that his conduct was at most reckless. The trial court refused defendant’s tendered instructions on involuntary manslaughter, believing that under the evidence, the defendant was either guilty of murder, or, according to his testimony at trial, not guilty as the death was the result of accident.

Noting that the basic difference between involuntary manslaughter and murder is the mental state accompanying the conduct causing death, the court held that the refusal of allowing the jury to make this determination was error. The court stated:

“When the death results from the use of nonlethal weapons, such as fists, a somewhat different situation exists. Whereas the intentional use of a deadly weapon is accompanied by a presumption the actor knows his acts create a strong probability of death or great bodily harm because a person intends the natural and probable consequences of his acts, generally, no similar presumption accompanies the striking of an individual with fists, since death is not a reasonable or probable consequence of a blow with a bare fist. (People v. Crenshaw (1921), 298 Ill. 412, 131 N.E. 576.) *** Hence, differences between murder and manslaughter involve considerations of degree. People v. Davis (1966), 35 Ill. 2d 55, 219 N.E.2d 468.
Such considerations are particularly significant when the evidence is conflicting or is susceptible of more than one inference and non-lethal instrumentalities caused death. When the evidence is conflicting and more than one inference may be reasonably drawn from it, it is the province of the jury to decide whether the accused is guilty of manslaughter or murder if there is any evidence which tends to prove the lesser crime.” 78 Ill. App. 3d 1003,1007, 398 N.E.2d 398, 401-02.

We have been unable to find a death from child abuse case where instructions on involuntary manslaughter have been refused. It would appear that the mental state accompanying the acts causing death in these tragic cases has always been considered a question for the jury’s determination. Thus, in People v. Ryan (1956), 9 Ill. 2d 467, 138 N.E.2d 516, defendant was indicted for murder and involuntary manslaughter for suffocating her newborn baby by placing it in a small, overnight case. Defendant’s conviction for involuntary manslaughter was sustained on appeal, the court noting that it was for the jury to determine whether defendant was guilty of murder or involuntary manslaughter. In a case factually similar, People v. Bartell (1944), 386 Ill. 483, 54 N.E.2d 700, defendant was indicted for murder and convicted of voluntary manslaughter for causing the death of his minor child by beating her so severely that she died of brain injuries resulting from a fracture of the skull. In both of these cases it would appear that it was tacitly conceded that in these unfortunate circumstances the jury must decide the degree of the defendant’s offense.

More recently, in People v. Brechon (1979), 72 Ill. App. 3d 178, 390 N.E.2d 626, the court sustained defendant’s conviction for involuntary manslaughter for causing the death of his seven-year-old son. As in this case, the defendant became angry because of something the boy did; he went into the bathroom where the boy was bathing, struck him in the face and either pushed or caused his head to go under the water, resulting in his death by drowning.

Here, the injuries inflicted on the child were severe. The medical testimony established that considerable force was used in the beating because bruises were found in the chest muscles and on the lungs, both protected by the chest cavity, and on the brain, protected by the skull. The chest had been struck so hard that it was compressed, forcing the lungs up against the child’s spine. The emergency room physician testified that the bruises were so dark they appeared to be burns. Neither the physician nor the pathologist could accurately estimate the number of bruises inflicted. In this case, the severity of the beating and the evidence that it was administered in part with a mop handle would clearly support the jury’s determination that defendant was guilty of murder, had the jury been properly instructed and the trial free from serious prejudicial error, which we will address later.

We emphasize that the evidence was sufficient to support defendant’s conviction for murder even though a nonlethal weapon may have been used. (People v. Palmer (1979), 76 Ill. App. 3d 1014, 395 N.E.2d 713.) Even a blow with the first may constitute murder where there is great disparity in size and strength between the defendant and his victim and the jury is properly instructed. People v. Crenshaw (1921), 298 Ill. 412, 131 N.E. 576; People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455.

As the court stated in People v. Crews (1969), 42 Ill. 2d 60, 244 N.E.2d 593, society is outraged at the killing of a young child; but care must be taken that the accused receives a fair trial where the jury is properly instructed. We believe that there is some evidence in the record which, if believed by the jury, would justify a conviction of the lesser offense of involuntary manslaughter. As the court noted in People v. Boisvert (1975), 27 Ill. App. 3d 35, 42-43, 325 N.E.2d 644, 650:

“[T]he most satisfactory trial solution would be for the judge to liberally apply the rules respecting the giving of instructions on lesser included offenses when requested by a defendant so as to give them freely in cases where there is any evidence fairly tending to bear upon the issue of that offense even though the evidence may be weak, insufficient inconsistent or of doubtful credibility. [Citations.] Even in cases in which there is no direct testimony that could establish a lesser included offense but where the jury could fairly infer that the lesser offense had been committed the defendant should be given the benefit of the doubt and the instruction as to the lesser included offense should be given in respect for the jury’s central role in our jurisprudence.”

As this case must be remanded for retrial, we shall address defendant’s other contentions of error. Over the objection of defendant, the prosecution made the following argument to the jury:

“And when Harriet Young came before you, she in fact was convicted at that moment for the murder of her own little boy. Not so much upon the premises of what she did, but what she failed to do when she had a duty to do something about it. Stand by and allow something like that to happen.”

Harriet Young had been convicted of murder; the effect of the prosecution’s argument was to tell the jury, as a matter of fact, that she had been convicted on principles of accountability, not for acts which she performed, but for aiding and abetting defendant in what he did in bringing about the child’s death. There was no evidence, as indeed there could have been none, of the facts in Young’s trial or the basis on which the jury returned its general verdict finding Young guilty of murder. Arguments not based on the evidence are improper. (People v. Dukes (1957), 12 Ill. 2d 334, 146 N.E.2d 14.) The critical issue in the trial was who was responsible for the child’s death. The defense was that Harriet Young performed the acts; she testified she did not. The jury had to determine the credibility of Young and defendant. The prosecution’s improper argument told the jury that a prior jury had determined as a fact that Young had not herself done anything that caused the death of Montez. This was improper and highly prejudicial; the court overruled defendant’s objection to this argument, thus expressing its approval of the propriety of this argument.

The State attempts to justify the comments as one on her credibility. But this misses the mark. Admittedly she, too, had been convicted of the murder of Montez, but this comment went far beyond an attempt to bolster her credibility as the factual assertion of the basis of her conviction has no bearing on the question of her motivation to lie or tell the truth.

Defendant’s final claim of error involves exclusion of evidence of prior abuse by Harriet Young and exclusion of expert testimony by a supervisor from the Department of Children and Family Services concerning patterns of child abuse.

While evidence of the commission of other crimes or wrongs by an accused is not generally admissible as the basis for an inference that he committed the crime in question, evidence of prior crimes or wrongs is admissible to show absence of accident, motive, opportunity, intent, identity, plan or scheme. (People v. Booker (1966), 34 Ill. 2d 16, 213 N.E.2d 542, cert. denied (1967), 386 U.S. 929, 17 L. Ed. 2d 800, 87 S. Ct. 872; 1 S. Gard, Illinois Evidence Manual 165-66 (2d ed. 1979).) Courts have, under the exceptions, admitted evidence that an accused has abused children in the past. United States v. Colvin (5th Cir. 1980), 614 F.2d 44 (motive, pattern of abuse); People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181 (mental state); People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455 (absence of accident, mental state).

Here, defendant was attempting to make use of the exceptions against his principal accuser. He argues that the prior beatings by Harriet Young tend to show a pattern of conduct on her part and consequently that she, not defendant, administered the fatal beating. The exceptions to the exclusionary rule are not limited to evidence offered by the prosecution against an accused. (Johnson v. Brewer (8th Cir. 1975), 521 F.2d 556; S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 126 (3d ed. 1982).) The defendant may offer evidence that a State witness has committed prior crimes or wrongs if the purpose is within the established exceptions. While the admission of such evidence is a decision requiring the exercise of discretion on the part of the trial court, and involves a balancing of competing interests, we believe it was error to exclude the proffered evidence in this case. McCormick, Evidence sec. 190, at 453 (2d ed. 1972).

Some evidence of Young’s prior conduct was admitted into evidence. One incident of prior abuse was related to the jury. Pat Lynn, a nurse social worker with the Department of Children and Family Services, testified that Young’s oldest boy was removed from her home after he had been abused. Young admitted to the Department that “she had whipped the child with a belt, then she whipped him with a cord from a T.V. antenna.” Young testified to the same incident. Although she denied that she beat the boy, she confirmed that the Department removed the boy from her home and placed him with Viola Moore.

In addition, the jury was informed that defendant’s sisters, Mary Owens and Havana Owens, witnessed a prior beating. Mary Owens was asked if she saw Young discipline her children. Owens replied, “I done seen her discipline them a lots, only one time did I, that I really seen her whoop him, you know, and got upset.” However, she and her sister were precluded from testifying to the details of these beatings. We believe the exclusion of this evidence was error.

The State argues that Harriet Young’s past behavior toward Montez had no bearing on what James Ward may have done. We disagree. The question the jury had to decide was whether the acts of Young or defendant, or both, caused the death of Montez. Defendant denied he administered the fatal beating. He was entitled to attempt to prove that it was more likely that Young performed the acts which caused the child’s death. We think defendant was entitled to introduce evidence of her past conduct toward Montez. The rule prohibiting evidence of independent criminal acts of an accused has no application here as Young was not on trial. A defendant is always entitled to attempt to prove that someone else committed the crime in question.

While Young had been convicted of murder in the death of the child, she denied she performed the acts which caused Montez’ death. She laid the blame in her testimony to defendant; her credibility was obviously relevant to defendant’s defense.

Nor do we believe that the prior conduct was too remote in time. In this regard, we believe the court in its discretion could have admitted expert testimony concerning the “battered child syndrome,” if it was satisfied that the proffered witness was qualified to give an opinion on the subject. In People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181, the court not only approved the admission of evidence of prior acts of child abuse by defendant as falling within the often stated exceptions to the nonadmissibility of evidence of other crimes, but also considered that expert testimony concerning the “battered child syndrome” was admissible against the accused. If material and competent against a defendant, it would be admissible against a witness, who was the principal accuser of the defendant, who had been convicted of the child’s murder and who had admitted that she had “whipped” the child in the past. Contrary to the State’s assertion, we believe that logic dictates that the prior actions of the mother are probative of defendant’s guilt or innocence.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed and this cause is remanded for trial in accordance with the views expressed herein.

Reversed and remanded.

JONES, J., concurs.

JUSTICE WELCH,

specially concurring:

While I concur in the result reached by the majority, I cannot agree that the trial court erred in refusing defendant’s tendered involuntary manslaughter instructions. The trial court reasoned that the defendant was not entitled to the instructions because, at trial, he had denied striking Montez Moore. However, I believe that the court’s decision was correct for a different reason.

It has been held that a beating resulting in death can be so severe as to negate any possibility that it was performed recklessly, especially where the victim was struck repeatedly with something other than the fists of the assailant. (People v. Brown (1967), 89 Ill. App. 2d 231, 231 N.E.2d 263; People v. Causey (1978), 66 Ill. App. 3d 12, 383 N.E.2d 234.) In such cases, involuntary manslaughter instructions need not be given. The brutal beating of Montez Moore, accomplished in large part with a rod or stick and producing internal and external bruises too numerous for the examining physician to count, must certainly fall into this category.

But, instead of recognizing this rule and applying it in this case, the majority, in effect, holds that there is a “child abuse” exception to the rule. This exception is, in my view, neither required by the case law nor justified by logic. Those authorities cited by the majority as examples of facts supporting involuntary manslaughter convictions for the death of a child do not involve attacks as extensive and vicious as that made on Montez Moore. These cases, in which a single act of child abuse (People v. Ryan (1953), 9 Ill. 2d 467, 138 N.E.2d 516 (suffocation); People v. Brechon (1979), 72 Ill. App. 3d 178, 390 N.E.2d 626 (drowning)) or a series of blows administered with fists (People v. Bartell (1944), 386 Ill. 483, 54 N.E.2d 700; People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181; People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398 (death caused by single blow to head); People v. York (1978), 57 Ill. App. 3d 243, 373 N.E.2d 90 (defendant repeatedly shoved victim)) led to the death of the child, merely show that a homicide resulting from child abuse can be involuntary manslaughter (People v. Gresham (1979), 78 Ill. App. 3d 1003, 1009, 398 N.E.2d 398, 403). They do not dictate that a jury question is always presented concerning the recklessness of acts of child abuse which result in death, especially where a bludgeon is used to deliver literally countless blows.

Moreover, to allow an excessively savage beating of a child to be considered “reckless” when such a beating made on an adult would be intentional as a matter of law defies common sense. The use of an object such as a mop handle on an infant, or small child is far more likely to cause death, and thus be an intentional act, than would the use of the same force upon an adult. For these reasons, I believe that the beating death of any victim, including a child, which is so extensive as to negate any possibility it was inflicted recklessly, is insufficient evidence to support an involuntary manslaughter instruction. Because the death of Montez Moore undoubtedly is of that sort, I disagree with that portion of the majority’s opinion which holds that that instruction is required in this case.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE BOARD OF EDUCATION OF MERIDIAN COMMUNITY UNIT SCHOOL DISTRICT 101, Petitioner-Appellee and Cross-Appellant, v. MERIDIAN EDUCATION ASSOCIATION et al., Respondents-Appellants and Cross-Appellees.
    Fifth District
    No. 82—202
    Opinion filed February 8, 1983.

      Drach, Terrell & Deffenbaugh, P.C., of Springfield, for appellants.
    James W. Sanders and Associates, of Marion, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This appeal is the result of a teachers’ strike which took place against the Board of Education of Meridian Community Unit School District 101 (the district) between August 19 and September 16, 1980. That dispute was resolved by a collective bargaining agreement which provided that neither party “shall cause reprisals or recriminations against the other party nor against individual employees, students, or other parties who might be subject to same as a result of the work stoppage.” The parties to the agreement were the district and the Meridian Education Association (MEA), which was recognized by the district in the agreement “as the exclusive and sole negotiation agent for all regularly employed full-time certificated teaching personnel, except the Superintendent, Assistant Superintendent, Principals, and other central office professional staff.” The agreement provided a procedure for resolving grievances, under which an employee would present a complaint to the employee’s immediate supervisor, then to the superintendent. Finally, if not satisfactorily resolved, the grievance would be submitted to arbitration.

On November 3, 1980, the MEA filed with the superintendent a grievance based upon the nonreprisal clause. It alleged that since the strike, the district had made only token use of local substitute teachers who had refused to cross the picket lines and had instead made greater use of substitutes from out of town or out of State, contrary to prior practices. The superintendent denied the grievance in a letter dated November 10, and the MEA sought arbitration.

In a decision issued on April 10, 1981, the arbitrator found that, although substitute teachers were not covered by the recognition clause of the collective bargaining agreement, they were entitled to seek arbitration of their grievance. It was decided that the district had violated the nonreprisal clause “by discriminatorily underutilizing regular local substitute teachers” who did not cross the MEA’s picket line. The arbitrator ordered the district to cease and desist from this practice and to pay the affected substitute teachers an amount based upon the difference between the usage made of the substitutes who did cross the picket line and those who did not.

On July 28, 1981, the district filed suit in the circuit court of Pulaski County to vacate the arbitration award. The district’s petition alleged that, in granting that award, the arbitrator had exceeded his authority under the collective bargaining agreement. After hearing arguments from both parties, the court entered an order confirming the arbitration award in part and vacating it in part. It was held that the substitute teachers were third-party beneficiaries of the nonreprisal clause, and therefore the arbitrator had the authority to consider their grievance. The court found that the arbitrator’s cease and desist order was proper, but stated that the monetary award was tantamount to the hiring of the substitutes and thus usurped the district’s discretionary hiring powers. The monetary award was accordingly vacated.

The MEA appeals from this judgment and challenges the court’s vacation of the monetary award. The district has brought a cross-appeal in which it contends that the arbitrator exceeded his authority in rendering his decision. The MEA’s first assignment of error, however, is that the circuit court lacked jurisdiction to hear the district’s petition to vacate the award because that petition was concededly filed 109 days after the arbitrator’s award was entered. This argument is made for the first time on appeal.

Section 12(b) of the Uniform Arbitration Act, as enacted in Illinois (Ill. Rev. Stat. 1981, eh. 10, par. 112(b)), states that an application to vacate an arbitration award “shall be made within 90 days after delivery of a copy of the award to the applicant, except that if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.” According to this section, the failure to present a petition to vacate an arbitration award within that period deprives the court of jurisdiction to hear that petition. See Kress Corp. v. Edw. C. Levy Co. (1981), 102 Ill. App. 3d 264, 430 N.E.2d 593; Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 398 N.E.2d 103.

However, the version of the Uniform Arbitration Act adopted in Illinois contains a provision not found in the Uniform Act. Section 12(e) (Ill. Rev. Stat. 1981, ch. 10, par. 112(e)) states that nothing in section 12 or any other section of the Act “shall apply to the vacating, modifying, or correcting of any award entered as a result of an arbitration agreement which is part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.” The MEA argues that to accept this provision as superceding the time limits of section 12(b) would, in effect, mean that no portion of the Uniform Arbitration Act would apply to arbitration based upon collective bargaining agreements. It is contended that this result would be contrary to other authorities which have applied portions of that Act to such arbitration. Board of Education v. Illinois Education Association (1981), 100 Ill. App. 3d 1026, 427 N.E.2d 789.

But section 12(e), as written, does not create an exception to the whole of the Uniform Arbitration Act where a collective bargaining agreement is involved. Instead, the exception which arises under that section applies only to action taken to vacate, modify or correct an arbitration award entered pursuant to a collective bargaining agreement. Section 12(e) does not purport to affect any other procedure taken in connection with such arbitration, and will not be so read.

Typically, section 12(e) is referred to for the proposition that the grounds for vacating, modifying or correcting an award entered pursuant to a collective bargaining agreement are those which existed at common law rather than those specified in section 12(a). (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 427 N.E.2d 1199.) As such, it could be argued that the exception of section 12(e) only refers to the grounds for a petition to vacate, modify or correct such an award, and not to the time limits in which that petition must be filed. However, the wording of a statute should not be presumed to be surplusage (Hirschfield v. Barrett (1968), 40 Ill. 2d 224, 239 N.E.2d 831, cert. denied (1969), 393 U.S. 1062, 21 L. Ed. 2d 706, 89 S. Ct. 716; Donahoo v. Board of Education (1952), 413 Ill. 422, 109 N.E.2d 787), and this construction of section 12(e) would do exactly that. To confine the application of that provision to the grounds for a petition to vacate, modify or correct such an arbitration award would render meaningless the clause of that section which precedes the semicolon. The plain wording of section 12(e) seems, instead, to override the jurisdictional time limits of section 12(b) when an arbitration award is made as part of or pursuant to a collective bargaining agreement. In such a case, the appropriate time limitation for a petition to vacate, modify or correct that award must be the five year period specified as applicable to actions on awards of arbitration in section 15 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 16). Under this standard, the district’s petition to vacate the award was timely. ^

One of the common law grounds for vacating an arbitration award is whether the arbitrator exceeded his authority in issuing that award. (Board of Education v. Chicago Teachers Union, Local No. 1; Board of Education v. Champaign Education Association (1973), 15 Ill. App. 3d 335, 304 N.E.2d 138.) At trial and before this court, the district alleges that the arbitrator exceeded his authority in accepting arbitration of this dispute because the substitute teachers, while arguably covered by the nonreprisal clause, were not parties to the collective bargaining agreement.

The district is correct that a nonparty to an agreement cannot compel a party to arbitrate based upon that agreement, even if the nonparty is mentioned in the agreement. (Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536, 302 N.E.2d 754.) This is a corollary to the rule that such a nonparty cannot be compelled to arbitrate. (Mid-America Regional Bargaining Association v. Modern Builders Industrial Concrete Co. (1981), 101 Ill. App. 3d 83, 427 N.E.2d 1011.) The question in this case is therefore whether the MEA, which originally brought the grievance to the superintendent, and then to arbitration, should be considered a party to the collective bargaining agreement for the purposes of presenting the complaints of the substitute teachers. The status of a person or entity entitled to compel arbitration is, like the status of an issue as arbitrable, determined from the language of the agreement giving rise to the arbitration. Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149.

As we noted earlier, the recognition clause of the collective bargaining agreement did not include substitute teachers in the group of employees represented by the MEA in negotiations with the district. Moreover, the definition of “teacher” in the agreement referred to the phrase “regularly employed full-time certificated teaching personnel,” as mentioned in the recognition clause. The rest of the agreement is consonant with this definition of a teacher, and included many provisions, such as those dealing with leave and transfers, which are of no interest to substitutes. Nor are any provisions of the agreement specifically applicable to them. Reading the contract as a whole, it is apparent that substitute teachers are not covered by the agreement and they are not parties to it. Therefore, they could not compel the district to arbitrate their grievance, even assuming that, as “other parties” in the nonreprisal clause, they were named in the agreement. Property Management, Ltd. v. Howasa, Inc.

The record in this case shows, however, that the teachers did not in fact bring the grievance to the superintendent or to arbitration. The MEA, representing the substitutes, was the named party in both proceedings, and the MEA was, of course, a signatory to the collective bargaining agreement. It does not necessarily follow, though, that the MEA is entitled to compel arbitration of grievances pertaining to any of its members, even if those members were not specifically covered by the collective bargaining agreement.

If we accept the MEA as a proper party to compel arbitration of the substitutes’ grievance, we would endorse a fiction to allow the substitutes to do what they could not do under their own names. The real parties in interest to these proceedings are beyond doubt the substitutes themselves rather than the MEA. A cease and desist order or award of back pay would benefit the substitutes individually and would not benefit the MEA, as an entity. Consequently, the grievance which was brought to arbitration does not affect the MEA organization, or its membership generally, but only a subgroup of its membership which was not covered by the collective bargaining agreement.

Thus, although the MEA signed the collective bargaining agreement, it did not do so as a representative of the substitute teachers. It cannot be said, then, that the MEA was a party to the agreement as far as arbitration of the grievances of substitute teachers is concerned. The collective bargaining agreement does not grant the arbitrator the authority to hear matters brought by the MEA as a representative of the substitute teachers, and, as a result, the arbitrator exceeded his authority in hearing the grievance. His award must be vacated.

The nonreprisal clause may give the substitute teachers a cause of action for breach of contract as third-party beneficiaries, but we need not decide this issue. That clause does not grant the arbitrator any authority to consider the substitute teachers’ grievance, and does not negate the plain meaning of the rest of the collective bargaining agreement that such authority was not intended by the parties to the agreement.

For the foregoing reasons, the award of the arbitrator must be vacated. The judgment of the circuit court of Massac County is accordingly affirmed in part and reversed in part.

Affirmed in part and reversed in part.

HARRISON, P.J., and KASSERMAN, J., concur.


author: JUSTICE KARNS

text:
      In re MARRIAGE OF ROBERT E. HANSON, JR., Petitioner-Appellant, and CATHERINE J. HANSON, Respondent-Appellee.
    Fifth District
    No. 82—246
    Opinion filed February 14, 1983.

      Wolff, Jones, Lawder & Elmore, of Murphysboro, for appellant.
    William G. Schwartz, of Hunter and Schwartz, of Carbondale, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Petitioner, Robert E. Hanson, Jr., appeals from judgment of the circuit court of Jackson County granting permanent custody of his son to respondent, Catherine J. Hanson.

The parties were married in Illinois in August of 1977. Shortly thereafter Robert entered the military and the couple resided in Florida where he was stationed. Their only child, James Michael, was born in October 1978. In June of the next year, Robert received notice of a transfer to Texas. Prior to the move, Catherine returned to Illinois. Apparently, James had been living with Robert’s grandmother; so, Catherine returned to get him. When the grandmother refused to let her have the child, Catherine instituted legal proceedings. The dispute was settled, however, when Robert joined Catherine in Illinois. The parties then decided that Robert should go to Texas alone and secure housing. He was to send money so that Catherine and James could join him later. Although Robert did as he promised, Catherine, fearing for her and the child’s safety, returned to Florida.

Robert saw James again on leave in October of 1980 and after his discharge in February, James lived with his father in Illinois until mid-April. Once again, Catherine came for the child and without Robert’s knowledge returned to Florida.

Since August both parties have resided in Illinois. Robert lives in a two-bedroom trailer with an unmarried adult female. Catherine the mother of two children in addition to James, lives with them in a two-bedroom apartment she shares with her sister.

Robert filed for dissolution of the marriage, seeking permanent custody of his son. The parties later entered into a marital settlement agreement in which they agreed that the best interests of the child would be served by placing him in their joint custody. Robert filed an amended petition incorporating the parties’ agreement. The trial court granted dissolution on September 29, 1981, but declined to accept the parties joint custody agreement finding it had insufficient evidence with which to make a decision. Temporary custody was awarded to Catherine, and Robert was allowed reasonable visitation on an equal basis.

A second hearing was held April 2, 1982, and permanent custody was awarded to Catherine. Robert was given visitation rights every other weekend, Wednesday evenings, on specified holidays and for three weeks during summer. The court precluded overnight visitation because of Robert’s living arrangement.

Robert alleges on appeal that the court improperly awarded temporary custody to Catherine; that permanent custody was not determined in accordance with section 602 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 602); and that his visitation rights were improperly restricted. Catherine seeks recovery of attorney fees and costs incurred in defense of this appeal.

Robert argues that the trial court’s decision awarding Catherine temporary custody was erroneous and as a result, it clouded the custody issue in the mind of the court at the later hearing, contributing to the court’s decision to award Catherine permanent custody. He claims that because there was no evidence presented of Catherine’s suitability to have temporary custody, the court relied on the doctrine of tender years to make its decision. The doctrine recognizes a presumption in favor of the mother in a contest for custody of children of tender years. The presumption is no longer accepted law. In re Custody of Switalla (1980), 87 Ill. App. 3d 168, 408 N.E.2d 1139.

The Illinois Marriage and Dissolution of Marriage Act provides for temporary custody orders. (111. Rev. Stat. 1981, ch. 40, par. 603.) The court’s order in this case stated, “temporary custody of the minor child, James Michael Hanson, be awarded to [Catherine] who has assumed primary responsibility for the custody of the minor child and that reasonable visitation and temporary custody on an equal basis with that of [Catherine] should be awarded to [Robert] who has also assumed considerable responsibility for the custody for [sic] the minor.”

We read the court’s order as merely maintaining the status quo of the parties until the permanent custody hearing was held, and we find the record devoid of evidence that the court was influenced by the temporary custody decision in awarding permanent custody.

Robert’s second argument is that the trial court’s decision to award permanent custody to Catherine was not made in accordance with the best interests of the child as required by section 602 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 602).

We emphasize at the outset that the court is not required to recite the factors of section 602 in making a decision. (In re Custody of Melear (1979), 76 Ill. App. 3d 706, 708, 395 N.E.2d 208, 210.) The court’s judgment in this case indicates it gave thoughtful consideration to the relevant factors. It considered the wishes of the parents. The judgment observes that Catherine fought for the right to have her child with her in the past. It notes that Catherine was on her own much of the time and often without support from Robert. Although Catherine chose not to reside with Robert in Texas, she indicated she did so because she feared for the child’s safety. The judgment also takes cognizance of the violent behavior of the parties. Although each party blamed the other for initiating such occurrences, the court specifically found that Robert had been violent with Catherine during the period of temporary custody authorized by the court. The court also discussed Robert’s current living arrangement. Based on its impropriety (Ill. Rev. Stat. 1981, ch. 38, par. 11—8) and the supreme court decision in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, cert. denied (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 329, it determined that the arrangement did not provide a healthy atmosphere in which to raise a child. Evidence as to the child’s relationship with others and of the child’s adjustment to his environment was abundant on both sides. There was no evidence of the child’s wishes because of his age, and both parents were considered healthy physically and mentally.

Bearing in mind the court’s articulate finding of facts and its superior familiarity with the facts and the parties involved, we cannot conclude that the court’s decision was an abuse of discretion. We note that the General Assembly added section 603.1 to the Act by Public Act 82 — 1002, effective September 17, 1982. (1982 Ill. Leg. Serv. 2630 (West).) This amendment provides that upon agreement of the parties, the court may award joint custody if it determines joint custody to be in the best interest of the child. Here, it is apparent that the court found that joint custody was not in the best interest of James, and had this new section of the Act been in effect, the trial court’s decision would not have been different.

Finally, Robert argues that the court applied a conclusive presumption of harm to the child based on Robert’s living arrangement. He believes the presumption was applied to the exclusion of other relevant evidence to deny him permanent custody of his son. Our foregoing analysis of the court’s decision illustrates, to the contrary, that the court carefully considered all the evidence as required by section 602 (111. Rev. Stat. 1981, ch. 40, par. 602). Robert’s living arrangement was one factor among many in the court’s decision.

Robert also argues that his visitation rights were improperly restricted. Robert was denied the right to overnight visitation as long as another woman resided with him outside of marriage. Overnight visitation was allowed at the home of the child’s paternal grandfather.

Section 607 of the Illinois Marriage and Dissolution of Marriage Act provides that the noncustodial parent of the child is entitled to reasonable visitation. (Ill. Rev. Stat. 1981, ch. 40, par. 607.) To restrict visitation rights the court must find that the child’s physical, mental, moral or emotional health is endangered. (In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 906, 405 N.E.2d 1289, 1293.) The endangerment standard is an onerous one. (In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048, 428 N.E.2d 1093, 1095.) In Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, cert. denied (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 399, a custody modification case, the supreme court found that open cohabitation between unmarried persons can endanger a child’s moral, mental and emotional health. The court felt that a parent’s disregard for existing standards of conduct might encourage the child to ignore them and could influence the child to engage in similar conduct. (78 Ill. 2d 337, 346, 400 N.E.2d 421, 424.) However, the court made exception for the case where the parent has plans to marry and there is no indication of future misconduct. See Rippon v. Rippon (1978), 64 Ill. App. 3d 465, 381 N.E.2d 70, cited with approval in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 348, 400 N.E.2d 421, 425, cert. denied (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 399.

Applying these principles to the present case we conclude that the restriction was not supported by the evidence. Because James is of such a young age it is difficult to perceive .how he could be influenced by his father’s choice of living arrangements, as was the concern in Jarrett. Also, Robert and the woman with whom he lived both testified they had plans to marry soon.

Catherine moved in the trial court for an order requiring Robert to pay her attorney fees and costs incurred in the defense of this appeal. The motion has been taken with the case.

Section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act provides for the recovery of attorney fees and costs incurred in the defense of an appeal from any judgment under the Act. (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(3).) Although the former divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 16) authorized the trial court to award attorney fees “during the pendency of the appeal,” section 508(a)(3) has no comparable provision. Without explicit statutory authority, the trial court lacks jurisdiction to award fees once the jurisdiction of the appellate court has attached. (In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 415 N.E.2d 1196, vacated as moot (1982), 89 Ill. 2d 498, 434 N.E.2d 293; Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254.) Thus we remand the cause to the trial court for a hearing on the question of attorney fees.

For the reasons stated, the judgment of the circuit court of Jackson County granting Catherine J. Hanson permanent custody of James Michael Hanson is affirmed. The restriction on Robert E. Hanson’s visitation rights is reversed and the cause remanded for a hearing on the issue of attorney fees.

Affirmed in part; reversed in part and remanded.

HARRISON, P.J., and KASSERMAN, J., concur.


author: PRESIDING JUSTICE HARRISON

text:
    AETNA LIFE INSURANCE COMPANY, Plaintiff, v. H.W. STOUT & ASSOCIATES, INC., et al., Defendants.—(ITT Thorp Corporation, Defendant-Appellant; The Peoples State Bank of Newton, Defendant-Appellee.)
    Fifth District
    No. 81—547
    Opinion filed February 15, 1983.

      George H. Huber, of Vandalia, for appellant.
    Lawrence Eaton, of Eaton, Eaton & Tomaw, of Newton, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

ITT Thorp Corporation (ITT) appeals from a supplemental order of the circuit court of Jasper County which directed that certain receiver’s fees, receiver’s attorney fees and property taxes be deducted from the proceeds of the sale of certain crops in which ITT held a security interest.

Resolution of the issues presented by this appeal requires that the facts be stated in some detail. Aetna Life Insurance Company (Aetna), a Connecticut corporation, held a mortgage on certain property of H.W. Stout and Associates, Inc., H. Wayne Stout, and C. Lavonne Stout. ITT held a second mortgage on the property, and the Peoples State Bank of Newton, Illinois (Peoples State Bank) held a third mortgage. ITT also claimed an interest in addition to that arising by virtue of its mortgage through a security agreement which included “farm products, and all other properties including general intangibles, choses in action, and other rights of debtor and all proceeds thereof” along with various items of farm equipment and other personal property.

On January 21, 1980, ITT filed a complaint for replevin (Jasper County case No. 80 — L—2), seeking possession of the property covered by the security agreement or a judgment for the value thereof. On March 4, 1980, the circuit court ordered that the Stouts assemble the personal property covered by the security agreement and deliver it to ITT. This order was apparently not complied with and, pursuant to a petition filed by ITT, the circuit court on July 16, 1980, entered a rule to show cause ordering the Stouts to appear and show why they should not be held in contempt of court.

On July 30, 1980, Aetna filed a complaint seeking to foreclose its mortgage on the Stout property (Jasper County case No. 80 — CH— 12), and both ITT and Peoples State Bank counterclaimed for foreclosure on September 18, 1980, and October 21, 1980, respectively. On October 17, 1980, pursuant to a petition filed by Aetna, the court appointed First National Bank of Newton, Illinois, as receiver with respect to the property. The order appointing the receiver also directed ITT to harvest crops growing on a certain section of the land, and to cause those crops to then be stored at a named facility. H.W. Stout and Associates, Inc., along with Handel Stout, was ordered to proceed in similar fashion with respect to crops growing on another section of the land. In a separate order also entered on October 17, 1980, the court consolidated the replevin and foreclosure actions.

On February 10, 1981, the court entered a judgment of foreclosure and sale on behalf of Aetna. The court found the total amount due Aetna, including judgment on the note secured by the mortgage, late payment charge, interest, insurance costs and attorney fees to be $745,719.28, and ordered that the property be sold if this amount was not paid to Aetna within 21- days from the entry of the judgment of foreclosure.

On March 31, 1981, a supplemental judgment of foreclosure was entered on behalf of ITT. The court found:

“That ITT Thorp Corporation has a valid lien on the property ***, which said lien is in the amount of $117,613.92 that this lien shall be subordinate only to that of plaintiff, Aetna Life Insurance Company, a Connecticut Corporation; and said ITT Thorp Corporation shall following sale of real estate ***, have priority second only to Aetna [sic] Life Insurance Corporation as to proceeds of the Sheriffs Sale as previously ordered by the ' court and that the Peoples State Bank of Newton, Illinois, shall have priority subordinate to that of ITT Thorp Corporation.”

The court further ordered that the bean crop which had been harvested be sold, and that, after crop expenses of $29,664.19 were paid to Handel L. Stout, the balance of proceeds realized from the crop sale be distributed to ITT.

A sheriff’s sale of the Stout property was held on April 2, 1981, and Peoples State Bank, the third mortgagee, purchased the property with a bid of $759,319.89. Distribution of these proceeds resulted in the full satisfaction of Aetna’s claim, and, after payment of expenses, the payment of $1 to ITT.

On April 6, 1981, Peoples State Bank filed a petition asking the court to reconsider the supplemental judgment of foreclosure. The petition alleged that the judgment did not reflect the agreement of the parties because, among other things, it did not require the proceeds of the beans to be used to pay the 1979 taxes and the fees of the receiver. The receiver filed its final report and petitioned for discharge on the following day. The report stated that the total proceeds of the crop sale amounted to $101,493.69, and that, after storage and other charges and expenses were paid, the sum of $64,019.01 was paid to ITT “as per Court Order.” The receiver pointed out in the report that the 1979 taxes on the property were “still overdue in a sum in excess of $5,000, since the receiver was directed to sell the 1979 crops and distribute the proceeds without payment of said taxes.” The report also asked that the receiver be allowed compensation of $2,253.60, and that the receiver’s attorney be allowed $1,095.82 for his services and expenses, both sums having been withheld from the proceeds of the bean sale. ITT filed an objection to the report, claiming that the fees should not be paid from the crop proceeds where the receiver was appointed at the request of Aetna. In a supplemental order filed on July 3, 1981, the court allowed the requested fees, and further found that the 1979 taxes should be paid out of rents and profits received by the receiver. Since the post-expense proceeds of the crop sale had already been paid to ITT by the receiver, the court further ordered that ITT pay the receiver a sum sufficient to pay all 1979 property taxes on the land, together with all costs, interests and penalties incurred in connection with those taxes.

ITT filed a post-judgment motion on July 31, 1981, in which it urged the court to reconsider the order allowing for payment of taxes and receiver’s fees out of the proceeds of the crops. On August 14, 1981, Peoples State Bank filed a petition for rule to show cause as to why ITT should not be held in contempt of court. The petition alleged that ITT had not paid the tax money to the receiver within the time allotted by the court, and that Peoples State Bank was forced to advance the funds to the receiver in order to avoid further penalties. The petition asked that ITT be held in contempt, that judgment be entered against ITT for the amount of the delinquent taxes plus the attorney fees and other costs incurred by Peoples State Bank.

A hearing on ITT’s post-judgment motion was held on September 15, 1981, at which time the court declined to modify its prior order concerning the payment of taxes and receiver’s fees. ITT filed notice of appeal on October 14,1981.

On appeal, ITT asserts that the trial court erred in determining that the receiver’s fees, the receiver’s attorney fees, and the 1979 property taxes should be paid out of the proceeds of the crop sale. Before reaching the merits of these questions, however, it is necessary for us to address the Peoples State Bank’s contention that the appeal must be dismissed.

Peoples State Bank argues that this appeal by ITT is interlocutory in nature, and that ITT was therefore required to file notice of appeal within 30 days of the trial court’s order. The bank further contends, apparently in the alternative, that the post-judgment motion filed by ITT on July 31, 1981, was a second post-trial motion directed at the court’s March 31, 1981, supplemental judgment of foreclosure, and that the July 31 motion did not extend the time for filing notice of appeal. Acceptance of either of these theories would compel dismissal of the appeal, since ITT did not file its notice of appeal until October 14, 1981, some 29 days after the hearing denying the relief requested by the July 31 motion, and nearly 2Vz months after the filing of the motion itself.

As to the first argument advanced in support of dismissal, we disagree with the bank’s conclusion that this appeal was interlocutory in nature. Rather, we believe the judgment complained of is final and appealable as a matter of right pursuant to the provisions of Supreme Court Rule 301 (87 Ill. 2d R. 301). It has often been stated that a judgment is final for purposes of Rule 301 when the court has made a determination “on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480.) It has also been said that a judgment is final when it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. Flores v. Dugan (1982), 91 Ill. 2d 108, 112; Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, 147 N.E.2d 371.

In this case, we believe that the judgment was final and appealable as of right no later than July 3, 1981. Examination of the record reveals that the substantive claims of the parties had been fully disposed of on or before the date of that order. The property had been sold by the sheriff, the sale had been approved by the court, and distribution of the proceeds had resulted in the satisfaction of Aetna’s claim. The court had fixed the amount of ITT’s lien, and determined that the claim of ITT had priority over that of Peoples State Bank. The receiver has sold the crops in accordance with the order of the court, had fully distributed the proceeds, and had been discharged by the order of July 3. The rights of the parties were fixed and absolute in all relevant respects. While the bank points out that the court retained jurisdiction for purposes of the receiver’s final accounting, such an accounting was entirely incidental to the substantive claims of the parties, and the fact that the court retained jurisdiction for this purpose does not conflict with the conclusion that final judgment had been rendered. (Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 415 N.E.2d 1060.) We note parenthetically that this could also be viewed as an appeal taken as a matter of right under Supreme Court Rule 304(b)(2) (87 Ill. 2d R. 304(b)(2)). In either case, whether it is viewed as an appeal from a Rule 301 final judgment or an appeal from a Rule 304 final judgment that does not dispose of an entire proceeding, our conclusion is the same. Accordingly, we reject the bank’s contention that the appeal was interlocutory in nature, and that ITT was thereby required to file notice of appeal within 30 days of the July 3,1981, order.

Having concluded that this appeal has been taken as a matter of right, we must address the bank’s alternative argument that the notice of appeal was nonetheless untimely. Supreme Court Rule 303(a) (87 Ill. 2d R. 303(a)) requires that:

“[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion.”

With respect to this issue, the bank appears to take the position that judgment was rendered by the court’s pronouncement of March 31, 1981, that its own April 6, 1981, petition to reconsider that judgment was a post-trial motion, and that this post-trial motion was disposed of by the supplemental order of July 3, 1981. The bank argues that ITT’s post-judgment motion of July 31, 1981, was a second post-trial motion directed at the court’s March 31, 1981, supplemental judgment, and that it did not operate to extend the time for filing notice of appeal beyond 30 days from July 3 when the first motion was disposed of.

Even if we were to accept the premise that final judgment was rendered on March 31, 1981, the bank’s argument is without merit. It is, as the bank points out, a general rule that a second post-trial motion does not operate to extend the time for filing a notice of appeal. (Rose v. Centralia Township High School District No. 200 (1978), 59 Ill. App. 3d 606, 607, 375 N.E.2d 1039.) An exception to this rule exists, however, in situations where the issues raised in the second post-trial motion could not have been raised in the first one. (In re Marriage of Viehman (1980), 91 Ill. App. 3d 315, 319-20, 414 N.E.2d 853.) The instant case falls within this exception. It was only in response to the bank’s April 6, 1981, motion seeking reconsideration that the trial court determined that the receiver’s fees, receiver’s attorney fees and 1979 property taxes should be paid out of proceeds from the crop sale. Until the court heard arguments and entered its. order to that effect on July 3, 1981, the issues now raised on appeal had not arisen at all. On July 31, 1981, ITT filed its post-judgment motion directed solely at the July 3 order. This post-judgment motion was not disposed of until the hearing of September 15, 1981. On October 14, 1981, 29 days after its post-judgment motion had been denied, ITT filed notice of appeal in the circuit court. Under these circumstances, that notice was timely, and this court has jurisdiction to entertain the appeal.

We now turn to the merits. ITT initially claims that the trial judge improperly ordered that receiver’s and receiver’s attorney fees be paid out of the proceeds from the crop sale. Illinois courts have long recognized, however, that a receiver, for his own fees, must look first to the income generated by the subject property. (See Prudence Co. v. Illinois Women’s Athletic Club (1936), 284 Ill. App. 210, 218-19, 1 N.E.2d 702; Miller v. American Light & Fixture Co. (1913), 181 Ill. App. 623, 628-30.) The same is true with respect to fees for the receiver’s attorney when counsel has been appointed by leave of the court. (Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1044, 389 N.E.2d 182.) Here, the only income generated by the property came from the sale of the crops and the receiver was properly paid out of the proceeds of that sale. The same is true as to payment of the receiver’s attorney fees, since the order appointing the receiver specifically authorized it to retain legal counsel. This determination is not altered by the presence of ITT’s security interest in addition to its mortgage on the property, since the rule as to receiver’s fees is not affected by the existence of such a lien. (See Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1044.) Accordingly, we affirm that portion of the trial court’s order directing the receiver to take its own fees and those of its attorney from the proceeds of the crop sale.

Finally, ITT contends that the trial court erred in ordering it to return to the receiver from the crop sale proceeds the sum of $6,472.97, in order that the receiver might use this money to pay the 1979 property taxes on the land, along with interest, penalties and costs. We agree that this portion of the order was erroneous. While it is the duty of a receiver to make such payments as would, so far as possible, prevent the enforcement of prior liens on the property (Driever v. Shephard (1930), 259 Ill. App. 239, 244), it is equally well settled that the purchaser at a judicial sale takes the property subject to all outstanding liens thereon. (Davis v. Dale (1894), 150 Ill. 239, 244, 37 N.E. 215.) In this instance, had the receiver been ordered to pay the taxes prior to the sale of the property, in order to prevent enforcement of the tax lien, there could be little doubt as to the propriety of such an order. When the bank purchased the property on April 3, 1981, however, it took the property subject to all of the liens which were outstanding, including the tax lien. (Community Savings & Loan Association v. Cosmopolitan National Bank (1966), 72 Ill. App. 2d 202, 208-09, 219 N.E.2d 103.) It was not until three months after the sale that ITT was ordered to return from crop proceeds an amount sufficient to pay the 1979 taxes. As noted by ITT, the effect of the court’s order would be to pass the property to the bank, the third mortgage holder, with the taxes paid and the lien discharged. Our research on the question, as well as considerations of fundamental fairness, disclose no basis for such an order, particularly where the court specifically found that the claim of ITT had priority second only to that of Aetna and superior to that of the bank. The receiver should not have been ordered to assist the purchaser, by paying the taxes out of the crop proceeds some three months after the foreclosure sale, and it makes no difference that those taxes had accrued prior to the time that the property was sold. (See Community Savings & Loan Association v. Cosmopolitan National Bank (1966), 72 Ill. App. 2d 202, 209.) Accordingly, that portion of the trial court’s order directing ITT to pay back to the receiver an amount sufficient to pay the 1979 property taxes along with interest, penalties and costs is reversed.

For the foregoing reasons, that portion of the supplemental order of the circuit court of Jasper County which ordered that receiver’s and receiver’s attorney fees be taken from the proceeds of the crop sale is affirmed. That portion of the order compelling ITT to return to the receiver $6,427.97 for payment of the 1979 property taxes along with interest, penalties and costs thereon is reversed.

Affirmed in part, reversed in part.

JONES and EARNS, JJ., concur.


author: JUSTICE JONES

text:
    RICHARD LONG, Plaintiff, v. BUCYRUS-ERIE COMPANY, Defendant.—(Consolidation Coal Company, Defendant and Third-Party Plaintiff-Appellant v. F & E Erection Company, Third-Party Defendant-Appellee.)
    Fifth District
    No. 82—100
    Opinion filed February 15, 1983.

      Dunham, Roman & Leskera, of East St. Louis (Robert D. Francis, of counsel), for appellant.
    William Kent Brandon, of Mitchell, Brandon & Schmidt, of Carbondale, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff Richard Long brought a negligence action against Consolidated Coal Company (Consol) to recover for injuries sustained while working on the construction of a dragline on a mine site owned by Consol. Consol filed a third-party action for indemnity against Long’s employer, F & E Erection Company (F & E), which had contracted with Consol to erect the dragline in question.

The jury found for plaintiff Long on the negligence claim, and Consol takes no appeal from the judgment entered against it on that verdict. The jury also returned a general verdict in favor of F & E on Consol’s indemnity claim and answered a special interrogatory as to whether Consol was “free from major fault in causing Richard Long’s injuries” in the negative. Consol appeals from the judgment in the third-party action, contending that the trial court should have entered judgment in its favor notwithstanding the jury’s verdict. Consol also contends that the trial court erred in dismissing its claim against F & E for contractual indemnity. We affirm.

Plaintiff Long was injured on January 24, 1977, when he fell off the base or tub of a dragline being erected on Consol’s Burning Star Mine No. 5 near DeSoto, Illinois. Long was a welder employed by F & E. He worked the second shift, 4 p.m. to midnight. At the time of the accident he was removing snow and ice from the tub in order to uncover a seam to be welded.

A tent-like structure of metal and canvas had been erected over the tub to protect the working parts of the dragline from the weather and to provide covering for the F & E workmen on the tub. The structure did not cover the entire tub but left part of it exposed around the outer perimeter. Along the edge of the tub were tie wires angling in and upward to hold the canvas roof taut. Cloth rags had been attached to the wires to alert those walking in the area of the tie wires. Some of the flags were missing, however, and the tie wires were difficult to see as the lighting was poor.

Long had been chipping ice and snow from the tub for about an hour when the accident occurred. He was facing outward away from the center of the tub. A tie wire, partially covered by snow and unflagged, was to his right. As Long stepped forward with his right foot, the buckle on his galosh caught the tie wire, and he fell forward. Long grabbed for a rope handrail which had been installed around the circumference of the tub, but the handrail was loose and sagging. Long fell to the snow below and suffered injuries.

Long brought suit against Consol, alleging that Consol exercised control over the construction of the dragline and that it was negligent in failing to provide plaintiff with a safe place to work. Consol in turn sued F & E for indemnity under a theory of active-passive negligence, contending that it was not actively involved in the construction of the dragline and should therefore be allowed to shift the burden of liability to F & E, the active tort-feasor.

It is undisputed that Consol owned both the dragline and the mine site upon which it was being erected. Construction of the dragline was done exclusively by F & E, and all the workers on the site were F & E employees. F & E also provided supervisory personnel, although both Consol and Bucyrus-Erie Company, from which Consol purchased the dragline, had men on the site to oversee the construction. An engineer from Bucyrus-Erie was present for purposes of quality control, while the Consol supervisor was to inspect the work and approve it for progress payments.

Under the terms of the contract between Consol and F & E, Con-sol had the right to terminate its contract with F & E upon seven days’ notice. Consol could also fire the F & E job superintendent if he proved to be unsatisfactory to Consol. All F & E workers, however, were subject solely to the control and supervision of F & E. Further, while the works and materials were owned by Consol, they were under the care and custody of F & E. F & E had the obligation under the contract to keep the job site clean and in a safe working condition, to anticipate the hazards of inclement weather in protecting property and personnel, and to provide safety devices used on the job.

It was Consol’s duty under the contract to provide F & E with copies of its safety policy for distribution to F & E employees. Consol had annual week-long safety meetings that F & E employees were required to attend. In addition, Consol supervisor Leonard West attended weekly safety meetings held on the job site for F & E employees. At these meetings West often gave safety orders to F & E personnel. On one occasion, for example, he ordered the grinding down and repainting of the handrails leading up to the tub of the dragline in order to prevent hand and finger cuts caused by the buildup of welds on the handrails. He also ordered that the welders restring their cables to avoid a safety violation resulting from tangled cables and insisted that the heavy equipment operators not run their machines without an alarm bell or a flagman present.

Consol brought Leonard West onto the job as supervisor in late 1976 after one of the two draglines F & E was to erect had been completed. Plaintiff Long testified that F & E had been running behind schedule and Consol had wanted West to represent it at the work site because he had the ability to make demands and get things done. Bucyrus-Erie’s quality control man agreed that there had been problems between F & E and Consol as to how things were being done and that West made certain changes. According to plaintiff Long, West would go all over the job site telling the welders, millwrights and iron workers what to do. Sometimes West would give orders directly to the F & E employees and at other times he would give them orders through the F & E foremen.

Shortly after coming onto the job, West gave Jack Hockey, the F & E job superintendent, a list of things which Consol and West wanted F & E to do on the job site. One of these tasks was to cover the dragline’s tub and revolving frame. Hockey testified that West had provided the list because F & E was planning to lay off some of its employees, and the list represented suggestions as to how to keep the men busy rather than lay them off. In any event, the tub was covered pursuant to West’s request.

Plaintiff Long testified that one night during the second shift the tarp covering the tub began to tear because of the strong wind. Leonard West came into the area where some of the men were eating supper and told Jim Reynolds, the F & E foreman, to shut the job down in order to save the tarp. During the operation to save the tarp, West gave the orders, and the F & E men, including the foremen and supervisors, worked to tie down the tarp. West did not at that time or at any other time instruct the men to cover the whole tub, although he was aware that workers frequently had to go onto the uncovered part of the tub to remove ice and snow.

On the night Long was injured, he was instructed to go onto the tub to chip the ice and snow off it. The testimony was conflicting as to whether Consol, in the person of Leonard West, was involved in the decision to send Long up on the tub. Long testified as follows:

“A. Well, Leonard turned around and told Jim Reynolds [the F & E foreman] — he said ‘Tell Long to go get a chipper and get up on the tub. There was a seam to be filled in but he’s got to chip off some ice first.’ That was in order to get the seam, of course.
Q. And who gave the orders?
A. Mr. West.
Q. And he said to ‘Tell Long to go get the chipper.’
A. He told Jim to tell Long to go get a chipper, that the seam had to be filled in and — the seam up there on the tub.
Q. And Jim Reynolds was your foreman?
A. Yes.
Q. And did he relay those orders to you?
A. Yes.
Q. And did you do what you were told?
A. I was doing what I was told.”

Jim Reynolds testified, to the contrary, that West had not told him to send plaintiff up on the tub that night. He denied that West had ever told him what his men should do and stated that he seldom had any contact with West as West was not on his shift. Leonard West himself did not testify as he was deceased at the time of trial.

Upon completion of the testimony the jury returned three special verdicts in the underlying negligence case, finding that there was negligence on the part of defendant Consol which was a proximate cause of damage to plaintiff Long and that there was no negligence on the part of plaintiff Long or Bucyrus-Erie Company, Consol’s codefendant. In a general verdict the jury found for the plaintiff and against Consol in the amount of $1.3 million. On the third-party claim the jury found that Consol was not entitled to reimbursement from F & E. The jury responded to a special interrogatory, finding that Consol was not “free from major fault” in causing plaintiff Long’s injuries. The court entered judgment on the verdicts and denied Consol’s post-trial motion for judgment n.o.v.

Consol contends on appeal that under the applicable standard of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the trial court erred in failing to grant judgment n.o.v. in its favor on the third-party claim. Consol maintains that the evidence adduced at trial, when viewed most favorably to F & E, established as a matter of law that F & E was in charge of the construction in question so as to render it primarily liable for plaintiff’s injuries. Con-sol points out that not only was F & E contractually responsible for worker safety, but it was also the party that erected the instrumentality (the tent-like structure partially covering the tub) which caused plaintiff’s fall. Consol contends, therefore, that its conduct in failing to discover, warn of, or correct the dangerous condition constituted only passive negligence for which it is entitled to indemnity under the doctrine of active-passive negligence.

Since the instant cause of action arose prior to March 1, 1978, the indemnity issues in this case are controlled by the traditional rule prohibiting contribution among joint tortfeasors. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849; Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154.) To ameliorate the harshness of this rule, courts have applied a theory of implied indemnity whereby a passively negligent tortfeasor may obtain indemnity from a joint tortfeasor who was actively negligent. (Carver v. Grossman (1973), 55 Ill. 2d 507, 305 N.E.2d 161.) Indemnification is available, however, only when there is a qualitative difference between the negligence of the two tortfeasors (Jackson v. Burlington Northern, Inc. (1980), 84 Ill. App. 3d 967, 405 N.E.2d 805), and one who is actively negligent will not be allowed to shift responsibility to another person regardless of the relative degree of their negligence. (Carver v. Grossman; Garfield Park Community Hospital v. Vitacco (1975), 27 Ill. App. 3d 741, 327 N.E.2d 408; Goodrick v. Bassick Co. (1978), 58 Ill. App. 3d 447, 374 N.E.2d 1262.) Moreover, it is inherent in the very nature of indemnity predicated upon the active-passive theory that the facts of the case in which it is sought “must clearly justify indemnification” (Carver v. Grossman (1973), 55 Ill. 2d 507, 512, 305 N.E.2d 161, 163) as application of another standard would permit the total shifting of responsibility to one negligent party while permitting the other to escape responsibility for his negligent conduct. Carver v. Grossman; Garfield Park Community Hospital v. Vitacco.

What constitutes “active” negligence so as preclude the shifting of liability between joint tortfeasors is not susceptible of precise definition and must often depend upon the facts of a particular case. (Moody v. Chicago Transit Authority (1974), 17 Ill. App. 3d 113, 307 N.E.2d 789; see Chesapeake & Ohio Ry. Co. v. Illinois Central Gulf R.R. Co. (7th Cir. 1977), 564 F.2d 222.) It is well settled, however, that there can be no indemnification where the party seeking indemnity has breached an affirmative duty to the plaintiff in the underlying action, as the indemnitee’s negligence must be of a “technical” or secondary nature. (Lundy v. Whiting Corp.; Burgdorff v. International Business Machines (1975), 35 Ill. App. 3d 192, 341 N.E.2d 122.) For instance, one who is technically liable to an injured party under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) may be entitled to indemnity from the active tort-feasor where his conduct was merely a minor or secondary cause of the injury. (Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630; Lambert v. D. J. Velo & Co. (1971), 131 Ill. App. 2d 30, 268 N.E.2d 170.) In the instant case, however, the basis of the plaintiff’s underlying negligence action was that Consol had breached an affirmative duty of care that arose because of the degree of control Consol asserted over the work project. In rendering its verdict for plaintiff Long, the jury necessarily determined that Consol had breached such a duty owing to the plaintiff. Under these circumstances, Consol is bound by the jury’s finding and is estopped from denying that its negligence substantially contributed to the plaintiff’s injuries. See Crum v. Gulf Oil Corp. (1979), 70 Ill. App. 3d 897, 388 N.E.2d 1008.

The court in Preston v. National Broadcasting Co. (1971), 133 Ill. App. 2d 200, 272 N.E.2d 700, considered the effect of a finding of negligence in the principal action upon a subsequent indemnity action. The court there held that:

“[A]n indemnitee, in his action to recover from the indemnitor the amounts paid in satisfaction of a judgment obtained against him by an injured person, is bound by all findings without which the judgment could not have been rendered, and *** if the judgment in the earlier action rested on a fact fatal to recovery in the action over against the indemnitor, the latter action cannot be successfully maintained. [Citation.]” (133 Ill. App. 2d 200, 203, 272 N.E.2d 700, 702.)

To the same effect is the court’s holding in Crum v. Gulf Oil Corp., where the jury entered its verdict for the plaintiff in the underlying negligence action, finding in a special interrogatory that the defendant/third-party plaintiff was actively negligent in causing the plaintiff’s injuries. The court noted that since the judgment in the underlying case established as a matter of law that the defendant/third-party plaintiff was actively negligent, its suit for indemnity was therefore barred and the third-party plaintiff was “estopped from denying that its negligence substantially contributed to [the original plaintiff’s] injuries.” Crum v. Gulf Oil Corp. (1979), 70 Ill. App. 3d 897, 902, 388 N.E.2d 1008, 1013; see Chesapeake & Ohio Ry. Co. v. Illinois Central Gulf R.R. Co.; Lundy v. Whiting Corp.; but see Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 383 N.E.2d 1242.

The evidence adduced at trial in the instant case showed that Consol, through its supervisor Leonard West, actively participated in the construction of the dragline on which the plaintiff was injured. West made suggestions to the F & E foremen concerning tasks to be performed on the work site and sometimes gave direct orders to the F & E employees. There was testimony to the effect that Consol through West was involved in the decision to erect the tent-like structure over the tub from which the plaintiff fell and that it was pursuant to indirect instruction from West that the plaintiff was on the tub on the night in question. There was also testimony that Consol, through West and others, involved itself in certain aspects of worker safety. Though some of this evidence was controverted, it was the function of the jury to resolve factual issues regarding the credibility of the witnesses and the weight of the evidence. (Spidle v. Steward (1980), 79 Ill. 2d 1, 402 N.E.2d 216.) The jury found, on the basis of this testimony, that Consol’s role in the work project was sufficient to raise a duty of care on its part toward the plaintiff which it subsequently breached. The jury also found in its answer to the special interrogatory that Consol’s negligence was not merely passive but constituted “major fault.” (Cf. Peoples v. Granite City Steel Co. (1982), 109 Ill. App. 3d 265, 440 N.E.2d 363, where, under facts showing a similar involvement on the part of a supervisor, the jury properly found that defendant’s conduct constituted “major fault” in causing plaintiff’s injuries.) These facts, and the verdict based thereon, conclusively establish that Consol was guilty of active negligence in causing the plaintiff’s injury and that it therefore is not entitled to indemnity from third-party defendant F & E. The trial court accordingly did not err in refusing to grant judgment n.o.v. for Consol in its action based on implied indemnity.

Consol additionally contends that the trial court erred in dismissing its claim against F & E for contractual indemnity. This claim is based on Article IX of the contract between Consol and F & E, which states in pertinent part:

“*** Contractor [F & E] agrees that it shall use extreme care, that is, care beyond that ordinarily required, in the per formance of its work [under the contract.] Contractor shall adequately protect the materials, the work, persons working on the premises, the general public and any adjacent property and Contractor shall assume all risks of the premises and will indemnify and hold harmless Consol, its directors, officers, employees and agents from and against any and all claims and/or demands including all costs and expenses, including attorneys fees, for injury or alleged injury or death to persons, or damage to property, caused by, arising from, incidental to, connected with or growing out of the work to be performed under this Construction Agreement, including, but not limited to, any work to be performed by any subcontractor or agent of Contractor.” (Emphasis added.)

The trial court found that the provision holding F & E to a standard of extreme care beyond that ordinarily required could permit Consol to be indemnified for its own negligence and held that it was thus void under section 1 of “An Act in relation to indemnity in certain contracts” (Act) (111. Rev. Stat. 1979, ch. 29, par. 61). This act prohibits as against public policy construction contract agreements that allow a party to escape liability for its own negligent acts. Consol contends, however, that the clause in question is not invalid under the Act as it does not specifically require F & E to indemnify Consol for its own negligence.

Consol relies in its appeal upon the rule of strict construction of indemnity contracts set forth in Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604. The court there held that an indemnity contract should not be construed as indemnifying one against his own negligence absent clear and explicit contractual language to that effect. (See Zadak v. Cannon (1974), 59 Ill. 2d 118, 319 N.E.2d 469; Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 410 N.E.2d 258.) This rule was invoked prior to the enactment of section 1 of the Act to limit the enforcement of such contractual provisions so as to insure that one agreeing to the extraordinary liability of indemnifying another against his own negligence was fully aware of the extent of his liability. (See Cox v. Lumbermens Mutual Casualty Co. (1982), 108 Ill. App. 3d 643, 439 N.E.2d 126.) While the rule still applies to indemnity provisions not covered by the Act, there is no longer any reason for the rule where clauses in the construction industry are concerned, and the Westinghouse rule is ineffective as to these provisions. Cox v. Lumbermens Mutual Casualty Co.

Consol argues, however, that the clause in question merely provides indemnity for negligent acts of F & E and that Consol is entitled to indemnity under the contract because its own liability is derived from F & E’s negligence in failing to provide plaintiff a safe place to work. As noted by the trial court, the standard of care set forth in the clause in question was greater than that required for ordinary negligence. Under the agreement, then, Consol could hold F & E to an extreme degree of care and escape liability for its own negligence. This it is prohibited from doing under the statute. If, on the other hand, we were to accept Con-sol’s argument that the clause does not indemnify it for its own negligence, then Consol would have no claim for indemnity under the contract because its liability toward the plaintiff was based solely in negligence. (Cf. Schuch v. University of Chicago, where the court upheld a clause providing indemnification for violations of the Structural Work Act since one can be technically liable under that Act for conduct which is less than negligent. But see Cox v. Lumbermens Mutual Casualty Co.) In either event Consol cannot free itself of the fact of its own negligence by invoking the contract terms. We find therefore that Consol had no claim for contractual indemnity from F & E and that the trial court did not err in dismissing that count of its third-party complaint.

For the foregoing reasons we accordingly affirm the judgment of the trial court in favor of third-party defendant F & E.

Affirmed.

EASSERMAN and EARNS, JJ., concur.