author: PRESIDING JUSTICE MEJDA

text:
    THE VILLAGE OF GLENVIEW, Plaintiff-Appellee, v. PETER VELASQUEZ, Defendant-Appellant.
    First District (5th Division)
    No. 83 — 0693
    Opinion filed April 27, 1984.

      Harold W. Klingner and Daniel J. McCormick, both of Law Offices of Harold W. Klingner, of Chicago, for appellant.
    Zachary D. Ford, of Glenview, and Bradley M. Glass, G. Kent Yowell, and Michael M. Roth, all of Northbrook, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant was found guilty of violating a municipal zoning ordinance and fined $50. The sole issue raised on appeal is whether the zoning ordinance is invalid as applied to defendant’s property. We affirm.

Approximately 28 years ago defendant and his wife acquired a five-acre tract of land located in the northwesterly portion of the village of Glenview and, shortly thereafter, built a single-family residence on the property. Several years later defendant obtained a permit from plaintiff village for the erection of the fence which is the subject of this action. The fence is six feet high, is constructed of chain link, has three strands of barbed wire at the top held in place by inward inclined support arms, and has a length of approximately 2,000 feet. Defendant erected the fence to discourage trespassers and to prevent wild animals from entering his property and destroying his garden and other vegetation.

On July 7, 1982, the village issued a citation to defendant for having failed to remove the barbed wire from the top of his fence within six months as provided by an amendment to the zoning ordinance effective October 5, 1981. The court, sitting without a jury, reviewed the pleadings, heard oral arguments and received into evidence defendant’s affidavit and a statement of the estimated cost of removing the barbed wire. Thereafter, the court denied defendant’s motion to dismiss, found defendant guilty and imposed a $50 fine. Defendant appeals.

Opinion

The sole issue raised on appeal is whether plaintiff village’s zoning ordinance is invalid as applied to defendant’s property. Defendant first argues that the terms of the village ordinance are inconsistent with the standard provided by Illinois statute for removal of nonconforming uses and maintains that the ordinance is, therefore, invalid.

Before becoming a home rule municipality in July 1971, the village adopted as part of its code article IX, entitled “Nonconformities.” The relevant portion of the “Purpose” provision of that article states that “the municipality desires pursuant to the authority granted in section 11 — 13—1 of the Illinois Municipal Code, to eventually eliminate the types of nonconformities which have the most serious adverse effect on the surrounding area.” After becoming a home rule unit, the village failed to delete the reference to section 11 — 13— 1 which provides in pertinent part that “provisions may be made for the gradual elimination of uses, buildings and structures which are incompatible with the character of the districts in which they are made or located ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 24, par. 11-13-1.

Defendant herein concedes that the village, a home rule unit, is not required to follow the standards set forth in the Illinois Municipal Code but argues that the village, by the language set out above, adopted such standards. He asserts that the “gradual” elimination of nonconforming uses called for in section 11 — 13—1 is inconsistent with the six-month period for elimination provided in the village ordinance here at issue and that the ordinance is, therefore, invalid.

We need not address whether the village is bound by the standard contained in section 11 — 13—1, however, because we believe the statutory term “gradual elimination” is not inconsistent with the six-month period prescribed by the village for removal of the barbed wire. We interpret the call for “gradual” elimination of nonconforming uses to mean an elimination over a period of time. Naturally, any such period must have a specified outer limit, in this case, six months. We, therefore, reject defendant’s argument.

Defendant next contends that the ordinance is unreasonable and, therefore, invalid. Our supreme court has found an amortization ordinance invalid as applied to certain property upon a showing of unreasonableness. (Village of Oak Park v. Gordon (1965), 32 Ill. 2d 295, 205 N.E.2d 464.) However, an amortization ordinance, like any other ordinance, is entitled to a presumption of validity, which presumption may be overcome by a showing that the public welfare does not require the restriction of use and resulting loss to the owner of the property. (Village of Oak Park v. Gordon (1965), 32 Ill. 2d 295, 205 N.E.2d 464; see also County of Cook v. Priester (1976), 62 Ill. 2d 357, 342 N.E.2d 41.) The one challenging the ordinance bears the burden of demonstrating its invalidity. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80, 354 N.E.2d 899.) Thus, we must determine whether the evidence supports the trial court’s conclusion that the presumption of validity was not overcome.

In support of his contention of unreasonableness, defendant first argues that the village ordinance is not grounded in the public welfare. The only evidence before the trial court regarding public welfare is defendant’s statement, made by affidavit, that the fence has caused injury to no one. Standing alone, such evidence is insufficient to overcome the presumption that the ordinance is valid. In any event, the village is not required to wait until an injury is sustained before exercising its police power to order the removal of a potentially dangerous material, thereby enhancing public welfare. Defendant has failed to meet his burden of proof in this regard.

Defendant next argues that the ordinance is unreasonable because the losses he would incur as a result of compliance are greatly disproportionate to the public benefit. In determining the reasonableness of an ordinance one factor for consideration is the balance of public gain against private loss. (Village of Oak Park v. Gordon (1965), 32 Ill. 2d 295.) In Village of Oak Park, relied on by defendant, the court held that “an ordinance which seeks to deprive defendant of [the right to continue an established nonconforming use] without any apparent public need *** cannot be upheld.” Village of Oak Park v. Gordon (1965), 32 Ill. 2d 295, 298.) Defendant also cites Village of Arlington Heights v. Krause (1973), 16 Ill. App. 3d 595, 306 N.E.2d 646, wherein the court stated that where the benefits derived by the public from the destruction of a nonconforming structure are unreasonably disproportionate to the losses incurred by the defendant as a result of such destruction, the ordinance requiring such destruction is invalid as applied to such defendant. Such determination must be made in each case upon the particular facts of that case. Village of Oak Park v. Gordon (1965), 32 Ill. 2d 295, 298, 205 N.E.2d 464.

In the instant case the evidence before the trial court showed that the cost of removing the barbed wire, burning off the extended arms and hauling away the wire and arms would be $1,695. However, defendant submitted no evidence to indicate the cost of removing only the barbed wire, The record shows that the fence was erected to discourage trespassing and to prevent wild animals in the surrounding area from destroying the vegetation on defendant’s property. Thus, defendant cites loss of security and privacy as part of his cost of compliance with the ordinance. Defendant’s affidavit submitted to the trial court stated that there were no single-family residences on the land surrounding his property at the time the fence was erected. However, the record is devoid of evidence regarding the use of such land at the time of trial.

It is apparent that having barbed wire used as a fencing material in a residential area is a detriment to the public. We note that defendant is not required to alter his fence in any way except to remove the barbed wire. On the evidence presented in this action, we are unable to say that the trial court erred in finding that defendant failed to show that the benefit derived by the public from having the residential area surrounding defendant’s property free from barbed wire is unreasonably disproportionate to his own loss.

Defendant next contends, in substance, that six months is too short a time period for compliance with the ordinance. The length of time in relation to the nature of the use is a factor to be considered in determining the validity of ordinances like the one here at issue. (Village of Gurnee v. Miller (1966), 69 Ill. App. 2d 248, 215 N.E.2d 829.) Such time limit should be “commensurate with the investment involved and based on the nature of the use; and in cases of nonconforming structures, on their character, age, and other relevant factors.” (City of Los Angeles v. Gage (1954), 127 Cal. App. 2d 442, 459, 274 P.2d 34, 43.) Applying these factors to the facts of the instant case leads to the conclusion that the length of time allowed for elimination of the nonconforming use was not unreasonable as applied to defendant’s property. Compliance with the ordinance will not require destruction of an existing structure but only requires removal of the three strands of barbed wire. Nor will such compliance result in loss of income to defendant. (Cf. Village of Oak Park v. Gordon (1965), 32 Ill. 2d 295, 205 N.E.2d 464, and cases cited therein.) On the facts here presented, we conclude that the ordinance is not unreasonable as applied to defendant’s property.

Accordingly, we affirm the judgment of the trial court.

Affirmed.

O’CONNOR and WILSON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
      In re MARRIAGE OF ANNA KOWSKI, Petitioner-Appellee, and THADDEUS KOWSKI, Respondent-Appellant.
    First District (4th Division)
    No. 83 — 829
    Opinion filed April 26, 1984.
    Michael W. Rathsack, of Chicago (Marcia Lipkin and Michael W. Rathsack, of counsel), for appellant.
    Walter M. Ketchum, Ltd., and Law Office of Patrick S. Moore, both of Chicago (Patrick S. Moore, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Thaddeus Kowski (respondent) appeals from an order of the circuit court of Cook County which denied his petition to reduce maintenance obligations to Anna Kowski (petitioner). The trial court denied the petition on the grounds that a substantial change had not occurred in respondent’s circumstances, in that he had voluntarily obtained a new employment without first attempting to find a position that would duplicate the earnings of his previous employment. The sole question presented for our review is whether respondent’s failure to attempt to duplicate his earnings before voluntarily changing his employment to a position of lesser income was sufficient grounds to deny his petition for reduction in maintenance payments. We find that it was not, and accordingly reverse and remand.

The parties were divorced on September 21, 1973, by judgment for dissolution of marriage, which also ordered respondent to pay $700 per month for maintenance to petitioner. Respondent filed his petition for modification of this judgment to reduce maintenance on February 4, 1981. He alleged therein that his annual income had decreased from $30,000 in 1973 to $18,200 in 1981, his cost of living had increased substantially, petitioner’s annual income had increased substantially, and there had been a substantial change in circumstances. Accordingly, he requested that the court reduce the spousal maintenance due petitioner to reflect their needs and incomes.

Petitioner filed her answer to this petition on March 6, 1981, denying that respondent was entitled to the relief sought. On that date she also petitioned the court to enter a rule to show cause against respondent, alleging that since January 1, 1981, he had paid her maintenance of only $400 per month.

On October 12, 1982, the court held a hearing at which respondent testified to determine the circumstances of his change in employment and resulting reduction in income. As a result of this hearing, the trial court found that in 1980 the company at which respondent had been employed since 1948 had been bought by new owners who had immediately changed and increased his work responsibilities without an increase in salary. It further determined that this had caused respondent’s health to become jeopardized and that he voluntarily changed his employment in December 1980 by leaving this position and buying into a new company, Formatic, Inc. The court noted that respondent’s present work was similar to that he had performed at his previous employment; that he had decided to purchase the business interest in Formatic before he terminated his previous employment; that he had not been offered employment by another company; and that he had not experienced an increase in salary at his new position and did not anticipate one.

Respondent’s testimony further reveals that he had decided to leave his previous position because his employers had made statements intimating that he would be imminently replaced or fired, because he anticipated a decrease in salary, and because the situation had so impaired his health he had been obliged to seek medical attention for a number of months until his departure. Moreover, the testimony indicates that he had not sought alternative employment prior to his decision to purchase an interest in Formatic because he felt the effort would be fruitless in view of his age (55) and the fact that others of his acquaintance, some younger than he, had encountered considerable difficulty in their attempts to procure new employment. The record discloses that respondent purchased Formatic along with a partner, also experienced in the field, on an installment plan for a price of $95,000 payable over five years. The purchase agreement limited respondent’s salary to $18,000 during this acquisition period unless profits warranted an increase.

The trial court denied the respondent’s petition for modification in a written order dated November 9, 1982. It concluded that the crucial factor was whether the husband’s change in employment had been “voluntary” or “necessary.” It determined that the change, although necessary to the husband’s health, had been nonetheless voluntary because it had come about in a way that was entirely of respondent’s own design. The court reasoned:

“Knowing his maintenance responsibilities pursuant to the [divorce] judgment, he still put himself in a position where he would earn considerably less and where it would be financially difficult to maintain his responsibilities. As'Petitioner, he has not shown the court that he made his plans upon a full investigation of all the possibilities in an effort to continue with his existing obligations.”

For these reasons, the trial court concluded that the circumstances did not warrant a modification of respondent’s maintenance obligations.

Respondent requested that the trial court reconsider its order on December 14, 1982, claiming that his change in employment had been a substantial change in circumstances justifying a reduction in maintenance. After considering the parties’ oral and written arguments, the trial court denied this motion on March 7, 1983. In a written decision, the court concluded that this result was appropriate because the respondent’s “employment search was limited and not designed to duplicate his earning ability” and the change had been only voluntary, rather than necessary. Respondent’s appeal followed.

Respondent argues that the trial court committed reversible error in its conclusion that a substantial change of circumstances is not shown where a husband voluntarily changes his employment to a position which reduced his income without first attempting to locate a position which duplicates his previous income. He maintains that the correct standard by which to determine a substantial change in circumstances in this context is whether the husband’s voluntary change in employment has been made in good faith, i.e., not in an attempt to avoid his maintenance obligations. He claims that a husband’s occupation or employment change may be voluntary rather than necessary, and that his failure to attempt to duplicate his earnings does not automatically constitute bad faith, as the trial court essentially concluded. We agree.

The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) provides in relevant part:

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances.” Ill. Rev. Stat. 1981, ch. 40, par. 510(a).

It is well established that a spouse’s voluntary change in occupation or employment made in good faith may constitute a substantial change in circumstances sufficient to warrant modification of maintenance or child support. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; In re Marriage of Ebert (1980), 81 Ill. App. 3d 44, 400 N.E.2d 995; Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161 (abstract of opinion); Lewis v. Lewis (1970), 120 Ill. App. 2d 263, 256 N.E.2d 660.) Good faith is not shown where it can be determined that the change has been prompted by a desire to evade financial responsibilities to the supported spouse. (In re Marriage of Ebert (1980), 81 Ill. App. 3d 44, 400 N.E.2d 995; In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 398 N.E.2d 1243; Glass v. Peitchel (1976), 42 Ill. App. 3d 240, 355 N.E.2d 750.) Such a voluntary, good faith change in employment need not equal or increase the spouse’s income; indeed, substantial reductions may be permissible and do not per se constitute lack of good faith. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; Graham v. Graham (1974), 21 Ill. App. 3d 1032, 316 N.E.2d 143; Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161 (abstract of opinion).) As the court stated in Coons v. Wilder (1981), 93 Ill. App. 3d 127, 133, 416 N.E.2d 785:

“Following dissolution of marriage, the custodial parent and children cannot be allowed to freeze the other parent in his employment or otherwise preclude him from seeking economic improvement for himself and his family. So long as his employment, educational or investment decisions are undertaken in good faith and not deliberately designed to avoid responsibility for those dependent [on] him, he should be permitted to attempt to enhance his economic fortunes without penalty.”

Consequently, modification of support obligation is appropriate where the supporting spouse terminates his employment to further his education (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; Graham v. Graham (1974), 21 Ill. App. 3d 1032, 316 N.E.2d 143; Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161), has suffered substantial economic setbacks resulting from investments (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; Elizer v. Elizer (1976), 36 Ill. App. 3d 552, 344 N.E.2d 493), or has encountered a reduction in income because of a change in employment or occupation. (Lewis v. Lewis (1970), 120 Ill. App. 2d 263, 256 N.E.2d 660; Fogel v. Fogel (1969), 184 Neb. 425, 168 N.W.2d 275; Nelson v. Nelson (1960), 225 Ore. 257, 357 P.2d 536.) Both Fogel and Nelson have been considered persuasive by courts in this State. (See Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785; Graham v. Graham (1974), 21 Ill. App. 3d 1032, 316 N.E.2d 143; Martinec v. Martinec (1974), 17 Ill. App. 3d 402, 308 N.E.2d 161.) We are equally persuaded in the instant case. Ordinarily a man makes an investment or changes his occupation with the hope of improving his prospects for the future, including his own standard of living as well as that of his dependents. (Fogel v. Fogel (1969), 184 Neb. 425, 428, 168 N.W.2d 275, 277.) Moreover,

“[A spouse] may wish to turn to another occupation, even though it calls for a permanent reduction in his income, because it holds the prospect of a more satisfying life for him. He should be permitted to choose such a course of action with the expectancy that the law will reduce the amount of the support money called for by the decree if it is the conclusion of the court that his hardship outweighs the hardship which would be visited upon his [dependents].” Nelson v. Nelson (1960), 225 Ore. 257, 264, 357 P.2d 536, 540.

The trial court in this cause concluded that reduction was inappropriate because respondent had voluntarily changed jobs and had failed to attempt to find employment which duplicated his earnings. The analysis set forth above, however, indicates that he was under no absolute obligation to do so. The proper standard to be applied was whether the husband had acted in good faith, or whether he had changed employment merely to evade his maintenance obligations.

The record reveals that the husband’s change in employment was prompted by his concern over his health, his displeasure with the circumstances of his previous employment, and his reasonable conclusion that an extended job search to find comparable employment at a similar salary level would be fruitless. It is also reasonable to infer that the husband became co-owner of Formatic in order to avoid a recurrence of the events in his previous employment that had prompted his departure, i.e., a lack of job security because he could be discharged from his position by the owner of the company. There is no evidence in the record to indicate that the husband’s change in employment was prompted by a desire to evade his maintenance obligations. In fact, the record discloses good faith on the part of the husband to find suitable employment which did not jeopardize his health and permitted him to receive an income which may well increase substantially in the future. Accordingly, we reverse and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

JIGANTI and O’CONNOR, JJ., concur.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL CORTES, Defendant-Appellant.
    First District (2nd Division)
    No. 81 — 3099
    Opinion filed May 1, 1984.

      Leonard L. Cavise, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Jonathan Mark Minkus, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Miguel Cortes was indicted, along with Elmer Meeks, Daniel Figueroa, and Elisa Cortes, for conspiracy to deliver a controlled substance (heroin), and with illegal delivery of that substance. All four defendants were tried together; defendant and Meeks did not appear at trial and were tried in absentia. Following a jury trial, defendant was found guilty on both counts and was sentenced in absentia to two 15-year terms of imprisonment to run concurrently. Defendant appeals.

Officer Harold Jenkins of the village of Maywood police department was assigned to the Northeastern Metropolitan Narcotics and Dangerous Drugs Enforcement Group. On June 5, 1980, Jenkins was assigned to “the Elmer Meeks case.” Jenkins, operating undercover, met with Meeks and arranged to purchase a quantity of heroin and cocaine. Meeks rode with Jenkins to the 2800 block of West Dickens in Chicago where they picked up a woman named Maria and her young son. They then drove to a Jewel parking lot at the 3500 block of North Broadway. Meeks told Jenkins that the drugs had been taken back to storage. Meeks then said that he would have to locate Daniel Figueroa or “his brother Popeye” to make the delivery of heroin. Jenkins identified “Popeye” as defendant.

The foursome then drove to the 2500 block of West Fullerton where Meeks left the car and spoke with defendant on the sidewalk. Meeks returned to the car and told Jenkins that he had just spoken to “Popeye” and that “Popeye” would locate Figueroa and the two of them would deliver the heroin. Jenkins then saw defendant enter a brown Lincoln.

Jenkins drove back to the 2800 block of Dickens where the woman and young boy left and where Meeks said he would wait on the sidewalk “for Danny or Popeye.” A few minutes later, defendant arrived in the brown Lincoln and spoke with Meeks. Ten minutes later, Figueroa arrived and conversed with Meeks and defendant. After two to five minutes, defendant left. Meeks informed Jenkins that Figueroa had said his wife “Ella” had gone to get the heroin. At 10:30 p.m., after waiting for about an hour, Figueroa and Meeks entered Jenkins’ car. Meeks told Jenkins that they were going to look for Ella. After failing to find her car on the 1800 block of north Albany, Jenkins returned to the 2800 block of Dickens.

At about 11 p.m., defendant returned and began talking with Meeks and Figueroa.

After a few minutes Meeks came over to the car and informed Jenkins that he believed Ella had gone to Lake Shore Drive to get the heroin and that she would arrive in about 20 minutes. She did not arrive until about 12 a.m. at which time she spoke to Meeks, Figueroa and defendant for three to four minutes. She then got in her car and left and Meeks informed Jenkins that she would be back in 20 minutes with the heroin. Ella returned at 12:45 a.m. and she spoke with Meeks, Figueroa and defendant for one to two minutes. Meeks then entered Jenkins’ car, handed him two clear plastic bags containing heroin, and asked for the balance of the purchase price. Jenkins refused to pay until he received the full amount of heroin he had requested. Meeks got out of the car and spoke to Ella, Figueroa and defendant. Meeks, Ella and defendant walked over to Ella’s car and Figueroa entered Jenkins’ car. Meeks then got Jenkins’ car and Figueroa got out and stood on the sidewalk with Ella and defendant. In Jenkins’ car, Meeks handed Jenkins three more clear plastic bags containing heroin. Jenkins then signalled other undercover officers to move in. The officers arrested defendant but were unable to capture Figueroa and Ella.

Defendant was arraigned on October 14, 1980. He attended subsequent pretrial hearings until February 4, 1981, when, upon his failure to appear, a bond forfeiture and warrant issued against him. After his failure to appear, nine additional pretrial hearings were held which defendant failed to attend. At a hearing on September 22, 1981, the court ordered that a certified letter be sent to defendant advising him that he would be tried in absentia. On October 2, 1981, Elisa Cortes (Ella), Daniel Figueroa, Elmer Meeks and defendant were tried before a jury. Meeks and defendant failed to appear and were tried in absentia. The jury found defendant guilty of conspiracy to deliver a controlled substance and delivery of a controlled substance. The court sentenced defendant in absentia to two 15-year terms of imprisonment to run concurrently. Defendant appeals from the jury’s verdict and the court’s sentence.

Defendant first contends that the trial court erred by failing to advise him that he could be tried in absentia if he failed to appear for trial. Section 113 — 4(e) of the Code of Criminal Procedure of 1963 provides as follows:

“If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence.” (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 4(e).)

Defendant contends that he did not receive the foregoing admonishment prior to trial and that therefore, his conviction must be reversed and the cause remanded for a new trial. We disagree.

Section 113 — 4(e) requires that the admonishment be given at arraignment “or at any later court date on which he is present.” (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 4(e).) In the instant case, there were 14 pretrial hearings following arraignment. Defendant did not receive the section 113 — 4(e) admonishments at arraignment or in the five hearings immediately thereafter which defendant attended. Defendant failed to attend the nine hearings immediately proceeding trial. Had defendant attended any of these latter hearings, the trial court could properly have given him the section 113 — 4(e) admonishments. These admonishments are designed to make defendant aware that he will lose his right to confront the witnesses against him if he fails to appear for trial. We will not allow defendant to benefit from his misconduct by manipulating a rule designed for his protection. We find that by voluntarily absenting himself from the pretrial hearings in this case, defendant has waived his right to object to the trial court’s failure to admonish him under section 113 — 4(e). See People v. Burns (1983), 117 Ill. 3d 123, 130, 453 N.E.2d 21.

Defendant next contends that the State failed to show by substantial evidence that the defendant’s absence from court was wilful. Section 115 — 4.1(a) of the Code of Criminal Procedure of 1963 provides in pertinent part that

“[wjhen a defendant after arraignment on an indictment or information charging him with a non-capital felony, fails to appear for trial, at the request of the State and after the State has affirmatively proven through substantial evidence that the defendant is willfully avoiding trial, the court may commence trial in the absence of the defendant. ***” (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4.1(a).)

Defendant contends that this provision requires something in the nature of a formal hearing at which the State must produce evidence that defendant’s absence is wilful. Defendant is mistaken on this point. Section 115 — 4.1(a) requires neither a formal motion nor a formal hearing before a trial in absentia can proceed. (See People v. Stanley (1983), 116 Ill. App. 3d 532, 534-35, 452 N.E.2d 105.) If the record contains sufficient evidence to support a finding that defendant wilfully absented himself from trial, the “substantial evidence” requirement of section 115 — 4.1(a) will be deemed to have been satisfied. See People v. Joyner (1982), 109 Ill. App. 3d 1083, 1088, 441 N.E.2d 1214.

In the instant case, the record reveals that defendant missed nine hearing dates prior to trial and a certified letter was sent to defendant’s last known address informing him of his trial date. These factors are a strong indication that defendant wilfully absented himself from trial. In People v. Watson (1982), 109 Ill. App. 3d 880, 883, 441 N.E.2d 152, the court stated that

“Rather than require the State to negate every possibility that a defendant’s absence was not wilful, we hold that a prima facie case is established by showing that the statutory requirements have been complied with. Only if the defendant introduces some evidence that he did not act wilfully should more be required of the State.” See also People v. Joyner (1982), 109 Ill. App. 3d 1083,1088, 441 N.E.2d 1214.

The statutory requirements referred to by the court in Watson are that (1) defendant be advised that he could be tried in absentia if he failed to appear for trial, and (2) defendant be informed via certified letter of his trial date. (Ill. Rev. Stat. 1981, ch. 38, pars. 113 — 4(e), 115 — 4.1(a).) In the instant case, defendant waived his right to a pretrial admonishment regarding a trial in absentia and he was informed via certified letter of his trial date. Under the circumstances presented in this case, we find that the evidence established a prima facie case that defendant wilfully absented himself from trial. We find that the trial court’s decision to proceed to try defendant in absentia was proper.

Defendant next contends that his convictions are based solely on inadmissible hearsay.

Defendant was convicted exclusively on the testimony of Officer Jenkins. Jenkins testified as to certain statements made to him by co-defendant Meeks which implicated defendant in the instant narcotics transaction. Defendant contends that there was an insufficient foundation for the admission of Jenkins’ hearsay testimony.

Both parties agree that if Jenkins’ hearsay testimony is admissible, it comes in under the hearsay exception concerning statements by co-conspirators. (See E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 802.10 (4th ed. 1984).) The existence of a conspiracy and defendant’s involvement in it must be shown by evidence independent of the statements themselves. (See People v. Jackson (1977), 49 Ill. App. 3d 1018, 1020, 364 N.E.2d 975.) It is defendant’s contention that there was insufficient independent evidence of defendant’s involvement with the conspiracy to invoke the statements by co-conspirators exception to the hearsay rule.

We have reviewed the testimony of Officer Jenkins and we find that it provides a sufficient foundation for the admission of the statement of a co-conspirator to be used against defendant. Independent of Meeks’ statements, Jenkins’ testimony clearly serves as circumstantial evidence that a conspiracy to deliver heroin existed and that defendant was an integral part of that conspiracy. It is true that at trial there were several hearsay statements interspersed in Jenkins’ testimony which directly implicated defendant in the narcotics transaction. But it is not required that the independent evidence of the conspiracy be introduced prior to the admission of the co-conspirator’s declaration. (See People v. Goodman (1980), 81 Ill. 2d 278, 284, 408 N.E.2d 215.) All that is required is that the State show a prima facie case of conspiracy, which it has done in the instant case. (See People v. Gray (1980), 85 Ill. App. 3d 726, 729, 410 N.E.2d 493.) We find that Officer Jenkins’ testimony as to what Meeks told him about defendant’s involvement in the instant narcotics transaction was admissible as the statement of a co-conspirator and served to prove defendant’s guilt beyond a reasonable doubt.

Finally, defendant contends that his sentence of two concurrent 15-year-terms was excessive and was an abuse of discretion by the trial judge. Defendant, who was sentenced in absentia was 22 years old at the time of the offenses in issue and had one prior conviction for criminal trespass to a vehicle. Defendant points out that the crimes in issue did not involve a weapon and were not violent and concludes that because his participation in the crimes in issue was “marginally sufficient to sustain a charge that he was an accountable participant or co-conspirator,” his sentence should be reduced. However, the evidence indicates that defendant was an active participant in the narcotics transaction in issue and an integral part of the conspiracy. Contrary to defendant’s assertion, it does not appear that defendant’s “peripheral” involvement in the crimes in issue warrants a reduction of defendant’s sentence. Moreover, the sentence imposed was well within the statutory range. The crime of which defendant was convicted is a Class X felony. (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1401(a)(1).) The sentence for a Class X felony shall be not less than six nor more than 30 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 8 — 1(a)(3).) Defendant’s sentence of 15 years falls well within this range.

It is clear that, under the circumstances presented, the court would have been justified in imposing a much harsher sentence. Section 411 of the Controlled Substances Act sets forth several examples of the type of offenses that the legislature “deems most damaging to the peace and welfare of the citizens of Illinois and which warrants the most severe penalties.” (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1411.) Included among the most damaging offenses is the possession and sale of heroin (see Ill. Rev. Stat. 1981, ch. 56x/2, pars. 1401(a), 1204(c)(2)) of which defendant was convicted. In the instant case, the sentencing judge elected not to impose the most severe penalty allowed by law. This decision was within the sentencing judge’s discretion and will not be disturbed on appeal. See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.

For the reasons expressed herein, the judgment of the circuit court is affirmed. Accordingly, the State’s request for the costs of defending this appeal is granted and defendant is hereby ordered to pay $50 in costs to the State. See People v. Nicholls (1978), 71 Ill. 2d 166, 178, 374 N.E.2d 194.

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE LORENZ

text:
    MASCO JOHNSON, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF PARK RIDGE, U/T #205, Defendant-Appellee.
    First District (5th Division)
    No. 82 — 2491
    Opinion filed April 27, 1984.

      Floyd D. Perkins and John F. Eichler, both of Chicago (David D. Albee, of counsel), for appellant.
    Jeffrey S. Blumenthal, of Kamm & Shapiro, Ltd., of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from a nunc pro tunc order entered on September 14, 1982, amending the half-sheet of the restored file in this case to reflect that a $5,000 personal injury judgment, entered for plaintiff on July 19, 1976, was against the First National Bank of Park Ridge U/T No. 205, and not against the First National Bank of Park Ridge.

After notice of appeal was filed, plaintiff’s motion to supplement the record with (1) a set of interrogatories date-stamped by the circuit court on March 31, 1976, which was allegedly served on the defendant, and (2) a photocopy of an executed memorandum of judgment, certified by the Cook County Recorder of Deeds and bearing the recording date of March 20, 1980, was allowed by the trial court on April 22, 1983, as to the interrogatories, but the admission of the memorandum of judgment as a part of the record was denied.

Plaintiff appeals from both the September 14, 1982, and April 22, 1983, orders.

On appeal, plaintiff urges that (1) it was error for the trial court to correct the restored half-sheet nunc pro tunc; (2) the First National Bank of Park Ridge is individually liable regardless of the order entered by the trial court on September 14, 1982; and (3) it was error for the trial court in its April 22, 1983, order, to refuse admission of the recorded memorandum of judgment into the record on appeal.

The following facts are pertinent to our decision.

Plaintiff, on or about January 10, 1974, brought a cause of action in tort, in the amount of $5,000 for personal injuries he sustained while on the real estate premises allegedly owned and managed by the defendant First National Bank of Park Ridge, U/T No. 205.

After receipt of an alias summons on or about June 18, 1974, defendant, by its attorney, filed its answer on July 18, 1974, in which it admitted ownership, operation, maintenance and control of the real estate premises, but denied all other allegations contained within plaintiff’s complaint. Further, defendant did not allege a representative trustee capacity at this time.

The record contains only an unexecuted memorandum of judgment, bearing neither a circuit court time-stamp nor the signature of any municipal department judge. The memorandum purports to show that judgment was entered on July 19, 1976, in favor of plaintiff, and as against defendant “First National Bank of Park Ridge,” in the amount of $5,000.

On December 7, 1981, the presiding judge of the circuit court of Cook County, municipal department, entered an order that the court clerk restore the lost file of the instant case, per the plaintiff’s ex parte petition for restoration.

In restoring the file in accordance with plaintiff’s petition, the clerk prepared a new half-sheet and placed in the file the following documents: complaint, summons, alias summons and answer — all indicating the defendant as “First National Bank of Park Ridge U/T # 205.” The half-sheet, however, named the defendant as “FIRST NATIONAL BANK OF PARK RIDGE.” In addition, plaintiff had also requested that answers to his interrogatories be included in the restored file; however, copies of these answers were not found.

On May 12, 1982, almost six years after the entry of the judgment, the plaintiff placed an execution with the Sheriff of Cook County in order to execute upon the defendant, “First National Bank of Park Ridge U/T #205.”

The sheriff attempted to attach the general assets of O’Hare International Bank (O’Hare) (which succeeded to the interests of the First National Bank of Park Ridge, and for the purposes of this appeal, assumed its rights and liabilities) as opposed to merely attaching the assets of trust No. 205.

On August 16, 1982, O’Hare moved to quash execution, alleging that the suit was filed against defendant, solely as a trustee, and not against the bank individually; that no effort was made by plaintiff to determine the names or identities of the beneficiaries of said trust; that no execution was taken out until May 12, 1982, six years after entry of the judgment; that all assets of said trust were taken by condemnation in case No. 79L7868, parcel No. RH 33 — 8, on or about November 1980, and prior to the issuance of execution; and that said trust was a closed trust and assets of the bank not in said trust are not subject to execution. Thereafter, the trial court denied defendant’s said motion to quash execution, and it continued the execution against Northern Trust Bank/O’Hare, successors to O’Hare and First National Bank of Park Ridge.

On August 25, 1982, defendant moved to correct thé clerical error entered on the half-sheet, which showed a $5,000 judgment against “First National Bank of Park Ridge.” In its motion, defendant contended that the entry of judgment against “First National Bank of Park Ridge” was totally unsupported by any of the official records in the file and was an obvious clerical error in recording the judgment; that the judgment against First National Bank of Park Ridge was void for the reason that the First National Bank of Park Ridge was never served nor named as a party defendant, nor did the First National Bank of Park Ridge ever appear as a defendant in the captioned case; and that any order entered against the First National Bank of Park Ridge in anything other than its capacity in which it was sued as trustee U/T No. 205 is null and void.

Finally, defendant asked the court to correct the half-sheet nunc pro tunc to list the judgment debtor as “First National Bank of Park Ridge U/T #205” and to reconsider its August 16, 1982, ruling and quash the outstanding execution against the general assets of O’Hare International Bank.

On September 14, 1982, the trial court amended the entry on the half-sheet made on July 16, 1974, to (1) “correctly reflect the judgment against the ‘defendant First National Bank of Park Ridge U/T # 205,’ and to reflect that no judgment is outstanding against First National Bank of Park Ridge,” and (2) that any relief regarding execution on the correct judgment must be brought before and heard by the correct branch of the circuit court hearing supplemental proceedings.

Opinion

We first consider plaintiff’s argument that it was error for the trial court to correct the restored half-sheet nunc pro tunc by its order of September 14, 1982.

Plaintiff initially contends that the trial court did not have jurisdiction to enter this order nunc pro tunc, as more than 30 days had expired since a final judgment had been entered by the trial court in this matter.

In support of his position, plaintiff cites Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294, where the court stated, “A trial court cannot review its own order or judgment and correct the same, either as to any question of fact found or decided by the court or as to any question of law decided by it after the expiration of thirty days.” 18 Ill. 2d 502, 505.

Defendant conversely contends that the law is clear that a trial court retains jurisdiction to enter a nunc pro tunc order correcting an otherwise final order or judgment even after the expiration of the term in which the judgment was entered.

A nunc pro tunc (“now for then”) order is any entry in the present for something previously done, made to make the record speak now what was actually done then. In re Estate of Bird (1951), 410 Ill. 390, 398, 102 N.E.2d 329; Furth v. Furth (1972), 5 Ill. App. 3d 73, 76, 283 N.E.2d 102.

Although we agree that the trial court cannot review its own order or judgment after the expiration of 30 days, we are aware that a court has inherent power to make an entry nunc pro tunc at any time, even after the expiration of its term, to correct a clerical error or matter of form so that the record reflects the actual order or judgment rendered by the court when such entry is based upon a definite and certain record. Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 1055-56, 399 N.E.2d 216; Brody v. Hess (1979), 75 Ill. App. 3d 402, 394 N.E.2d 570.

“The correction must be based on some note, memorandum, or memorial paper remaining in the file or upon the records of the court; it cannot be based on the recollection of the trial judge or other persons. [Citations.] Moreover this power is limited to entering into the record something which was actually done; it may not be used to supply omitted judicial action, to correct judicial error, or to cure a jurisdictional defect.” In re Marriage of Gingras (1980), 86 Ill. App. 3d 14, 16, 407 N.E.2d 788, 791.

Defendant cites Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708, as an example of the application of the court’s power to enter an order nunc pro tunc. In Dauderman, the plaintiff successfully moved to correct a divorce decree which ordered defendant to pay plaintiff “*** $400 as alimony ***,” to read $400 “per month.” This order nunc pro tunc was entered more than 30 days after the divorce decree had been entered. In upholding this order on appeal, the appellate court found, in part, that the very language of the decree “demonstrates that the words ‘per month’ were inadvertently omitted.” 130 Ill. App. 2d 807, 809.

We agree with defendant that the situation in the instant case is very similar to that in Dauderman. Aside from the unexecuted memorandum of judgment contained within this record, all other documents contained therein — the complaint, the summons, the alias summons, the appearance and the answer — reflect the defendant as the “First National Bank of Park Ridge U/T #205.” In addition, even the execution (contained in appellee’s appendix) issued May 12, 1982, upon plaintiff’s direction, shows the defendant as the “First National Bank of Park Ridge U/T #205.”

It should be noted here that the judgments of the municipal department are entered only in the court’s minute book and upon the half-sheet which is kept in the court file. At the time of the trial court’s original judgment for plaintiff on July 19, 1976, the law had been that the half-sheet was merely a memorandum of the court proceedings and was not part of the official court record. (In re Shannon (1977), 45 Ill. App. 3d 876, 879, 360 N.E.2d 433.) Through the enactment of Circuit Court General Order No. 6.5 in 1977, the half-sheet in the municipal department now constitutes “part of the official court record” in each case. Berzana v. Mezyk (1980), 86 Ill. App. 3d 824, 826, 408 N.E.2d 412.

It is clear in this cause that the entry on the half-sheet reflecting a judgment against the “First National Bank of Park Ridge” was a clerical error, and not one judicial in nature. Upon restoration of the court file in this case, it is very likely that the court personnel re-creating the half-sheet used the unexecuted memorandum of judgment as a basis for its entry. Since all other documents contained within this record contravene the memorandum of judgment in their recitation as to the defendant, “First National Bank of Park Ridge U/ T #205,” we believe that the trial court was correct in its allowance of defendant’s motion to correct the record nunc pro tunc. The half-sheet in this case should be amended to reflect a $5,000 personal injury judgment against defendant, “First National Bank of Park Ridge U/T #205.”

In our ruling as to the propriety of the trial court’s order nunc pro tunc of September 14, 1982, we make no judicial interpretation as to the liabilities of the parties involved in the instant case; nor do we interpret that this was done by the trial court in its September 14, 1982, order from which plaintiff appeals.

Since the very nature of an order nunc pro tunc is one of correction of clerical errors, neither the trial court on September 14, 1982, nor the appellate court in this appeal, can consider whether the First National Bank of Park Ridge is individually liable on plaintiff’s judgment of July 19, 1976. Thus, no determination as to the bank’s liability will be made, as it is outside the scope of the September 14, 1982, order.

We next turn to plaintiff’s contention that the trial court erred in its April 22, 1982, order refusing the recorded memorandum of judgment into the record on appeal. See Supplemental Record.

Plaintiff argues that he tendered the memorandum of judgment as an exhibit to his motion to supplement the record under Supreme Court Rule 329 (87 Ill. 2d R. 329). Plaintiff further argues that the memorandum of judgment which was recorded on March 20, 1980, discloses that the judgment was entered against “First National Bank of Park Ridge.” He urges that this memorandum reflects the court’s judgment as originally entered, based upon facts as admitted by defendant and as determined by the original trial court.

Plaintiff cites the holding in People v. Hoyne (1915), 195 Ill. App. 272, 276, where the court stated:

“No doubt what transpires in the presence of the court, rules of court and generally all matters of which the court takes judicial knowledge, need not be formally given in evidence, but may go into the bill of exceptions,”

as being supportive of his position.

Plaintiff further claims that his offering of the memorandum of judgment should have been accepted by the trial court on April 22, 1983, as a correction of the record. Further, he cites a number of Illinois decisions which allow the amendment of the record after the close of the term based upon any minutes, memoranda or notes of the judge, an entry in a book required by law to be kept, or papers on file in the case. See Oskvarek v. Richter (1961), 32 Ill. App. 2d 438, 178 N.E.2d 209; Martinez v. Seymour (1952), 348 Ill. App. 112, 108 N.E.2d 30; Hickey v. Hickey (1938), 295 Ill. App. 67,14 N.E.2d 688.

Defendant conversely contends that the trial court’s ruling was proper, as it was based on its knowledge of the procedures in the preparation of the memorandum of judgment. Defendant proffers the argument that memoranda of this type are introduced and prepared by the plaintiff, and then taken to court clerk who affixes a seal to it so that it can be recorded and a lien created.

Plaintiff conversely argues that the memorandum he tendered to the trial court on April 22, 1983, contains a judge’s signature as verification of the actual original judgment as entered, and should be allowed as part of the record on appeal.

Plaintiff filed his motion to supplement the record relying on Supreme Court Rule 329, which provides in part:

“The record on appeal should be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof.
Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth.” 87 Ill. 2d R 329.

Although we are in agreement with the Illinois decisions that plaintiff cites which hold that the record on appeal can be supplemented by the trial court in order to correct material omissions, inaccuracies or improper authentication, we do not believe that the memorandum of judgment in question, recorded approximately four years after the judgment was rendered in the instant case and allegedly signed by an unidentifiable trial judge, qualifies as a correction of the record as intended by the cases cited. From our analysis of the record, it is clear that this document was not in the control of the trial court from the date of judgment, nor can it be determined that it was based upon some note or memorandum from the records of the trial court. Further, it is not based on the judge’s minute book, since it cannot be determined from the face of the document which trial judge, if any, signed it.

“The record of the court imports absolute verity, and the note or memorandum which would authorize its amendment after adjournment of the term must necessarily be a note or memorandum which could be said to have been made by the judge or pursuant to a requirement of the judge or of the law.” Martinez v. Seymour (1952), 348 Ill. App. 112, 114, 108 N.E.2d 30.

Therefore we are of the opinion that the trial court’s order of April 22, 1983, properly excluded plaintiff’s proffered recorded memorandum of judgment.

The orders of September 14, 1982, and April 22, 1983, are hereby affirmed.

Affirmed.

SULLIVAN and WILSON, JJ., concur.


author: JUSTICE MILLER

text:
    LOREN QUALLS, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant (Robert Donaldson et al., Intervenors-Appellees).
    Fourth District
    No. 4 — 83—0299
    Opinion filed April 30, 1984.
    Rehearing denied May 25, 1984.
    Paul W. Bloomer, of Denby, Dobbs, Meno & Bloomer, P.C., of Carlinville, for appellant.
    Verticchio & Verticchio, of Gillespie, for appellee.
    Phelps, Carmody, Hasten, Cain & French, of Carlinville (Carl E. Hasten, of counsel), for intervenors-appellees.
   JUSTICE MILLER

delivered the opinion of the court:

The question presented by this appeal is whether a carpenter’s general liability insurance policy provides him with coverage against a claim arising from work that he performed in an allegedly unworkmanlike manner. The carpenter, Loren Qualls, was hired by Mr. and Mrs. Donaldson to construct a new house to what the parties refer to as the “blacked-in” stage. Unhappy with the work, the Donaldsons sued Qualls for breach of contract and breach of warranty. Qualls’ insurer, Country Mutual, denied him coverage, so Qualls brought this action for a declaratory judgment, seeking a construction of the policy and a declaration of his rights under it; the Donaldsons intervened in behalf of Qualls. The parties filed cross-motions for summary judgment, and the circuit court held that the insurance policy provided “coverage for damages for work performed in an unworkmanlike manner.” Country Mutual appeals, and we reverse.

Qualls and the Donaldsons made their agreement in September 1977 for $26,000. A year later the Donaldsons filed suit, alleging that Qualls had breached the agreement, and specified 19 ways in which he either had done the work poorly or had failed to follow the blueprints and other plans. The Donaldsons alleged six separate injuries:

“[1] There is a sag in the house, the walls having missed the piers;
[2] The house leaked and continues to leak;
[3] The footings and walls are severely cracked;
[4] The house has never been completed to the stage agreed upon;
[5] The house has no basement floor;
[6] The appearance of the house materially varies from the blueprints and plans.”

The complaint went on to allege that the Donaldsons had advanced Qualls about $23,000 — notwithstanding their original agreement that the price would be due upon completion — that costly repairs would be required yet would fail to bring the house into conformity with the Donaldsons’ expectations, and that the condition of the house had delayed the Donaldsons’ occupancy of it.

The Donaldsons later added a second count to their complaint, alleging that Qualls breached the implied warranty that he would perform the agreement in a workmanlike manner. The second count is identical to the first in all other respects and alleges the same acts in breach and the same injuries.

Under the insurance policy in question Qualls paid for coverage for liability for bodily injury and property damage in two broad areas: the manufacturers’ and contractors’ liability insurance coverage part and the completed operations and products liability insurance coverage part. These may require some explanation. Manufacturers’ and contractors’ coverage protects the insured’s premises and work in progress; completed operations and products coverage, of concern here, protects the insured from liability arising out of his operation and productions after he has finished or abandoned his work. Hawkeye Security Insurance Co. v. Hodorowicz (1980), 84 Ill. App. 3d 948, 406 N.E.2d 146.

The dispute here centers on several of the exclusions to the completed operations and products part. The relevant exclusions provide:

“This insurance does not apply:
(a) to liability assumed by the insured under any contract or agreement; but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner;
* * *
(f) to property damage to the named insured’s products arising out of such products or any part of such products;
(g) to property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

Relying on the exception that is part of exclusion (a), the circuit judge construed the policy as providing “coverage for damages for work performed in an unworkmanlike manner.”

Country Mutual argues that the costs of repairing and replacing the insured’s own work are excluded by paragraphs (f) and (g) and that an exception, such as that in paragraph (a), cannot be stretched to provide coverage where none otherwise exists. Qualls and the Donaldsons respond that a fair reading of the exclusions shows that the policy is ambiguous and that the ambiguity must be resolved in the insured’s favor.

The parties cite decisions from other jurisdictions addressing the same question of contractors’ coverage under general liability policies identical or substantially similar to the one at issue here. Some of these courts, relying on their own notions of what an ordinary layman would understand the policy exclusions to mean, have concluded that the language is misleading or insolubly ambiguous and therefore have found coverage by construing the language against the drafters. Federal Insurance Co. v. P.A.T. Homes, Inc. (1976), 113 Ariz. 136, 547 R2d 1050; Commercial Union Assurance Cos. v. Gollan (1978), 118 N.H. 744, 394 A.2d 839.

Country Mutual argues that the exclusions are not ambiguous and should be given effect. Several reasons support this view. First, comprehensive general liability policies like the one here are intended to protect the insured from liability for injury or damage to the persons or property of others; they are not intended to pay the costs associated with repairing or replacing the insured’s defective work and products, which are purely economic losses. (LaMarche v. Shelby Mu tual Insurance Co. (Fla. 1980), 390 So. 2d 325; Chambers Gasket & Manufacturing Co. v. General Insurance Co. of America (1975), 29 Ill. App. 3d 998, 331 N.E.2d 203; Weedo v. Stone-E-Brick, Inc. (1979), 81 N.J. 233, 405 A.2d 788.) Finding coverage for the cost of replacing or repairing defective work would transform the policy into something akin to a performance bond. Second, an exception to an exclusion such as that contained here in exclusion (a) should not be interpreted as granting coverage or providing an additional basis for coverage. Hawkeye Security Insurance Co. v. Hodorowicz (1980), 84 Ill. App. 3d 948, 406 N.E.2d 146; Weedo.

Third, and ■ most important, the exception in exclusion (a) has a meaning that does not conflict with exclusions (f) and (g). Country Mutual cites the explanation given in Weedo, which construed an exclusion (a) identical in substance to the one here. The Weedo court first repeated its conclusion that a contractor’s liability policy covers “faulty workmanship which causes an accident” rather than “an accident of faulty workmanship” and then said:

“Within this structure, contractual liability is excluded under the terms of exclusion ‘(a)’. The exception to this exclusion insures, however, that claims premised upon quasi-contract or contract by implication, such as warranty actions, will be covered. Such claims must nevertheless be otherwise cognizable under the general grant of coverage in the first instance in order to constitute a claim ‘to which this insurance applies.’ ” 81 N.J. 233, 249, 405A.2d 788, 796.

If an insurance policy is not genuinely ambiguous, it should be interpreted and enforced as it appears. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) An ambiguity arises here only if the exception in exclusion (a) is interpreted as conflicting with exclusions (f) and (g). That exception has an independent purpose consistent with the rest of the document, however, so no ambiguity exists.

The Donaldsons also argue that exclusions (f) and (g), taken by themselves, do not preclude coverage, for their complaint against Qualls contemplates recovery not only for repairing or replacing his defective work product but also for the damage that his work did to that of others. In the language of Weedo that would be faulty workmanship that causes an accident and therefore would not be excluded by the policy. The Donaldsons raised this alternative theory below, but the trial judge did not rule on it.

The Donaldsons argue that the house was not Qualls’ work or product alone and that his lapses caused damage to the work and products of others, as from exposure to the elements. (See e.g., Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1980), 90 Ill. App. 3d 1106, 414 N.E.2d 41 (defective governor regulating pins that were installed in engines); Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, 370 N.E.2d 1271 (defective valves that were used in aerosol cans of hair spray); Ohio Casualty Insurance Co. v. Terrace Enterprises, Inc. (Minn. 1977), 260 N.W.2d 450 (insecure footings and foundation that threatened collapse of apartment complex).) In Elco Industries and Pittway the products of others were damaged or rendered worthless by repairing or using the defective products of the insureds, and coverage was found under the general liability policies involved. In Terrace Enterprises the court found coverage because the faulty work lowered the value of the building and, if uncorrected, would have caused the building to collapse.

We reject the suggestion in Terrace Enterprises that diminution in value is sufficient in itself to give rise to coverage under a general liability policy such as the one here. Diminution in value is the inevitable result of defective workmanship or products and is the measure of the defect or fault. That the Donaldsons’ house is not worth as much as it would be if Qualls had performed his work properly is no reason to find coverage, for the cost of remedying his work product is a purely economic loss and not covered by this policy. Sentry Insurance Co. v. S & L Home Heating Co. (1980), 91 Ill. App. 3d 687, 414 N.E.2d 1218.

Whether an insurer has a duty to defend is determined by the allegations in the complaint against its insured. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.) Here, the Donaldsons sued Qualls for breach of contract and breach of implied warranty. They alleged a matter such as his breaking a bathtub not as a separate cause of action but as evidence of his poor workmanship. The complaint requested damages only for economic losses, which allegedly resulted from Qualls’ poor workmanship. Those are excluded from coverage by the policy.

Reversed.

MILLS, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    EDWARD CERVENY, Plaintiff-Appellee, v. THE STATE OF ILLINOIS et al., Defendants-Appellants.
    Second District
    No. 83 — 520
    Opinion filed May 2, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Rosalyn B. Kaplan, Edward C. Hurley, and Susan C. Weidel, Assistant Attorneys General, of counsel), for appellants. .
    Kathleen I. Zitzka, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The State of Illinois, Department of Labor, Board of Review and its Director (State) appeal from an administrative review judgment which reversed the decision of the Board of Review approving recoupment for an unearned unemployment claim paid to Edward Cerveny due to a clerical error.

It is undisputed that Cerveny received unemployment benefits during the weeks of August 30, 1981, through May 29, 1982; that he reached the age of 65 years on September 16, 1981; that he complied with regulations by filling out the required form stating that he was then receiving social security payments on his 65th birthday; and that due to a clerical error on the part of the Department of Labor, Cerveny received income which disqualified him for unemployment compensation for the stated period.

The claims adjudicator determined that the unemployment benefits received by Cerveny between August 30, 1981, and May 29, 1982, were an overpayment which was subject to recoupment. Cerveny appealed and the decision was affirmed by the hearing referee and thereafter by the Board of Review. Cerveny then filed a complaint for judicial review under the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110). The circuit court reversed, finding that recoupment will be “against equity and good conscience.”

The State contends that Cerveny had waived the issue of recoupment by failing to request the waiver of recoupment in the administrative proceedings; and that, in any event, the record does not support the judgment of the circuit court.

Section 900 of the Illinois Unemployment Insurance Act provides, as material:

“Recoupment. A. Whenever an individual has received any sum as benefits for which he is found to have been ineligible, the amount thereof may be recovered by suit in the name of the People of the State of Illinois, or, from benefits payable to him, may be recouped:
* * *
2. Within 3 years from the date he has been found to have been ineligible for any other reason, pursuant to a reconsidered finding or a reconsidered determination, or pursuant to the decision of a Referee *** which modifies or sets aside a finding or a reconsidered finding or a determination or a reconsidered determination. Recoupment pursuant to the provisions of this paragraph from benefits payable to an individual for any week may be waived upon the individual’s request, if the sum referred to in paragraph A was received by the individual without fault on his part and if such recoupment would be against equity and good conscience. ***” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 490.

Cerveny testified before the referee, that in the instructions he originally received, social security was not to be deducted and that he was not told about the change. After the referee’s finding that the State was entitled to recoupment, Cerveny applied for reconsideration, stating that after he reached the age of 65 he marked “Yes” to the question on the unemployment form relating to receipt of social security income. Thus, there is no question that Cerveny at no time made a false statement or knowingly failed to disclose a material fact.

The State argues that Cerveny failed to raise the waiver issue before the administrative agency, and may not raise it for the first time here. (See Leffler v. Browning (1958), 14 Ill. 2d 225, 228.) However, while Cerveny did not formally claim he was entitled to a waiver of the recoupment by the State of unearned unemployment benefits he received without his fault, we conclude that he did not waive the issue before the administrative agency. He made known to the hearing referee, in addition to the fact that he felt he had done nothing wrong and should not be obligated to repay, that “you can’t get blood out of a turnip *** out of a stone”; that he was out of work and that his wife was out of work and that “you can’t get blood out of a stone.” In his written appeal from the hearing referee he stated that he could not repay the amount claimed “now or later *** you cannot recoup when I cannot recoup ***.” In our view this was sufficient to alert the administrative agency to the need for a hearing to determine whether recoupment should be waived for equitable reasons.

We disagree, however, with Cerveny’s claim that the record supports the judgment on judicial review. The trial judge on administrative review is confined to the record before the administrative agency and may not go beyond it. See, e.g., Pisano v. Giordano (1982), 106 Ill. App. 3d 138, 140. See also Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.

Here, the record before the administrative agency was insufficient to prove that recoupment would be against equity and good conscience. The statement by Cerveny that he and his wife were out of work and that he couldn’t pay now or in the future is an insufficient basis for the trial judge to conclude that recoupment would be against equity and good conscience, without further evidence.

The terms “equity and good conscience” are not defined in the statute, and there are apparently no Illinois cases defining those terms in connection with the section 900 of the Unemployment Insur anee Act. As the State notes, under section 204 of the Federal Social Security Act, the United States cannot recover overpayments if recovery would defeat the purpose of the statute “or would be against equity and good conscience.” (Emphasis added.) (42 U.S.C. sec. 404(b) (1976).) The regulations promulgated under that section state:

“ ‘Against equity and good conscience’ means that adjustment or recovery of an incorrect payment *** will be considered inequitable if an individual, because of a notice that such payment would be made or by reason of the incorrect payment, relinquished a valuable right *** or changed his or her position for the worse ***. In reaching such a determination, the individual’s financial circumstances are irrelevant.” 20 C.F.R. sec. 404.509 (1983).

The reference to an individual’s financial circumstances is stated to mean “to deprive a person of income required for ordinary and necessary living expenses. This depends upon whether the person has an income or financial resources sufficient for more than ordinary and necessary needs, or is dependent upon all of his current benefits for such needs.” 20 C.F.R. sec. 404.508(a) (1983).

Cases under the Federal statute have determined that the recipient has the burden of showing relinquishment of a valuable right or a change for the worse in his position. (See Sierakowski v. Weinberger (6th Cir. 1974), 504 F.2d 831, 836. See also Milton v. Harris (7th Cir. 1980), 616 F.2d 968, 974.) We find the reasoning of these cases to be persuasive in our interpretation of the similar terms of the Illinois statute.

The judgment of the circuit court of Du Page County is reversed and the cause remanded to the Department of Labor for a further hearing consistent with this opinion.

Reversed and remanded.

UNVERZAGT and NASH, JJ., concur.


author: JUSTICE HEIPLE

text:
    JACK D. ADAMS et al., Plaintiffs-Appellants, v. HERMAN BROOKS, Defendant-Appellee.
    Third District
    No. 3 — 83—0678
    Opinion filed May 10, 1984.
    Elmo E. Koos, Sr., of Peoria, for appellants.
    Brian Nemenoff, of Peoria, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiffs, Mr. and Mrs. Adams, appeal from the orders of the circuit court of Peoria County dismissing their complaint against the defendant, Herman Brooks. Mr. Brooks was a fireman of the city of Peoria municipal fire department. Brooks supervised the firefighting activities at the Adams’ residence in December 1975. Count I of the complaint alleged that Brooks negligently performed his firefighting duties. Count II alleged wilful and wanton conduct. The trial court found that the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, pars. 5 — 102, 5— 103(b)) protected Brooks from liability for the activities alleged in the complaint. We affirm.

The issue on appeal is whether the trial court erred in finding Brooks immune from suit. Mr. and Mrs. Adams set forth, several arguments which were decided in their prior appeal to this court in Adams v. City of Peoria (1979), 77 Ill. App. 3d 683. We shall not consider those arguments here.

A fireman’s immunity is based upon sections 5 — 102 and 5 — 103(b) of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat. 1983, ch. 85, pars. 5 — 102, 5 — 103(b).) Section 5 — 102 protects firemen from liability “for an injury resulting from the failure to suppress or contain a fire ***.” (Ill. Rev. Stat. 1983, ch. 85, par. 5 — 102.) Section 5 — 103(b) provides in relevant part as follows:

“Except as provided in Section 1 — 4—4 of the ‘Illinois Municipal Code’, *** and in Section 1 of “An Act in relation to the tort liability of fireman of fire protection districts or corporations’, *** neither a local public entity nor a public employee acting in the scope of his employment, is liable for an injury caused by an act or omission of a public employee while engaged in fighting a fire.” (Ill. Rev. Stat. 1983, ch. 85, par. 5— 103(b).)

Together, the two sections provide firemen with a blanket immunity from liability for injuries arising from firefighting activities, subject only to the two exceptions noted in section 5 — 103(b).

Mr. Brooks was an employee of a municipal fire department, not a fire protection district. Consequently, only section 1 — 4—4 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 1 — 4—4) is applicable to Mr. Brooks. Section 1 — 4—4 states as follows:

“In case any injury to the person or property of another is caused by the negligent operation of a motor vehicle by a member of a municipal fire department while the member is engaged in the performance of his duties as fireman, and without the contributory negligence of the injured person or the owner of the injured property ***, the municipality in whose behalf the member of the municipal fire department is performing his duties as fireman shall be liable for that injury. But in no case shall a member of a municipal fire department be liable in damages for any injury to the person or property of another caused by him while operating a motor vehicle while engaged in the performance of his duties as a fireman, unless such injury results from his wilful and wanton misconduct. ***”

Section 1 — 4—4 expresses a narrowly defined exception to a firefighter’s immunity. A municipal fire department firefighter will be liable only for injury resulting, from his wilful and wanton operation of a motor vehicle. The complaint of Mr. and Mrs. Adams does not allege that Mr. Brooks wilfully and wantonly operated a motor vehicle. Therefore, he is immune from liability.

Nonetheless, Mr. and Mrs. Adams argue that the immunity provided by sections 5 — 102 and 5 — 103(b) is unconstitutional. They base their argument upon an alleged discrepancy between the two exceptions noted in section 5 — 103(b). Under the section 1 — 4—4 exception, as stated above, a municipal fire department fireman is only liable for wilful and wanton conduct while operating a motor vehicle. Mr. and Mrs. Adams interpret the other exception, expressed in section 1 of “An Act in relation to the tort liability of firemen of fire protection districts or corporations” (section 46) (Ill. Rev. Stat. 1983, ch. 127V2, par. 46), to state that a fireman of a fire protection district can be liable for wilful and wanton conduct while engaged in any firefighting activities. Consequently, a fire protection district fireman could be liable for the wilful and wanton supervision of firefighting activities, while a municipal fireman (i.e., Mr. Brooks) could not be liable for such conduct.

In Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 270, the supreme court restated the principle “that valid classifications for purposes of municipal tort liability may be created but they must relate to the types of municipal functions involved and may not rest upon the differences between the governmental agencies which perform the same function.” Mr. and Mrs. Adams claim the difference between the two exceptions creates an unconstitutional classification based upon the governmental body involved, rather than the type of function, since both types of firemen fight fires but are provided different immunities. We find no merit in the constitutionality argument of Mr. and Mrs. Adams because we do not accept their interpretation of section 46.

Mr. and Mrs. Adams derive their interpretation of section 46 upon language found in McCann v. Lisle-Woodridge Fire Protection District (1983), 115 Ill. App. 3d 702, 710, wherein the court suggests that any fireman could be liable for injuries arising from his wilful and wanton conduct while engaged in any firefighting activities. We do not believe the McCann opinion accurately states the law concerning the possible liability of a fireman arising from activities other than the operation of a motor vehicle. In McCann, the plaintiff’s injuries arose from a collision resulting from a fireman’s operation of a motor vehicle. On appeal, only the liability of the fire protection district was at issue. Thus, the scope of the court’s decision is limited to the possible liability of a fire protection district for injuries arising from its fireman’s operation of a motor vehicle. Any discussion by the McCann court concerning the general liability of a fireman for his firefighting activities under sections 46 and 1 — 4—4 is, therefore, dicta. We choose not to follow the McCann court’s interpretation of a fireman’s liability.

Section 46 provides as follows:

“In case any injury to the person or property of another is caused by the negligent operation of any motorized fire fighting equipment by a *** fireman of a fire protection district or *** [corporation] while he is engaged in the performance of his duties as a fireman, and without contributory negligence of the injured person *** the fire protection district or *** [corporation] in whose behalf the fireman is performing his duties shall be liable for that injury. While engaged in preventing or extinguishing fires, any fireman *** of a fire protection district or *** [corporation] may enter upon the lands of any person, firm, private or municipal corporation or the State of Illinois to carry out his duties and while so acting shall not be criminally or civilly liable for entering upon such lands. In no case shall such a fireman be liable in damages for any injury to the person or property of another caused by him while engaged in the performance of his duties as a fireman, unless such injury results from his wilful and wanton misconduct.” (Ill. Rev. Stat. 1983, ch. 1271/2, par. 46.)

The import of section 46, as far as it concerns a fireman’s liability, is not clear. Arguably, one could read section 46 as did the McCann court. However, on the question of a fireman’s liability, section 1 — 4— 4 is clear. It applies only to the operation of a motor vehicle. The ostensible conflict between the two sections does take on constitutional proportions. Consequently, it is “our duty to interpret the statute in such a manner as to promote its essential purpose and to avoid, if possible, a construction which would raise doubts as to its validity.” Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 271.

The Stubblefield court was faced with the task of reconciling the vague phrase “motorized fire fighting equipment” found in section 46, with the more specific phrase “motor vehicle” found in section 1 — 4— 4. In order to preserve the constitutionality of the firefighter’s immunity, the supreme court held that the phrase “motorized fire fighting equipment” would have no broader meaning than the phrase “motor vehicle” found in section 1 — 4—4. In the same vein, and after considering the language of sections 5 — 102, 5 — 103, 1 — 4—4 and 46 together, we hold that the exception to tort immunity found in section 46 is no broader than the exception found in section 1 — 4—4. We read both sections to exempt only the operation of a motor vehicle from the blanket immunity provided by sections 5 — 102 and 5 — 103(b) of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat. 1981, ch. 85, pars. 5 — 102, 5 — 103(b).) Consequently, we find that the sections do not create divergent and unconstitutional classifications based upon the same government function. Therefore, we affirm the trial court’s decision that Mr. Brooks was immune from liability for the activities alleged in the complaint.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE JOHNSON PRESIDING JUSTICE LINN,

text:
    CHARLES E. KOCHAN et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 83 — 1997
    Opinion filed May 3, 1984.

      LINN, P.J., dissenting.
    B. John Mix, Jr., of Chicago, for appellant Charles E. Kochan.
    Lord, Bissell & Brook, of Chicago, for appellee A. L. Salzman & Sons, Inc.
    Purcell & Wardrope, of Chicago, for appellees R. S. Anderson Company, Ruth Kalnitz, and Phyllis Slavin.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee Central Electric Construction Company.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Charles Kochan, appeals an order of the trial court granting judgment for defendants on those counts of his complaint alleging a cause of action under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) (hereinafter the Act). The sole issue to be considered by this court is whether the trial court erred in holding that plaintiff established no cause of action under the Act.

We affirm.

On May 10, 1983, plaintiff filed a second amended 12-count complaint against defendants asking damages for injuries he suffered while performing electrical work on August 9, 1980. At that time plaintiff was employed by his father’s company, Arcade Electric Company, which had a subcontract with Central Electric Construction Company (Central Electric) for the installation of an electrical system in a new building under construction in Chicago, Illinois. A. S. Salzman & Sons, Inc. (Salzman), was the architect and general contractor, and Ruth Kalnitz and Phyliss Slavin are owners of R. S. Anderson Company (Anderson) which owned the building. Commonwealth Edison Company owned the electrical conductors located on the premises.

This appeal is concerned with the dismissal of counts VII, IX and XI, which alleged violations of the Structural Work Act by Salzman, Anderson and its owners, and Central Electric. Other counts alleged negligence and loss of consortium by plaintiff’s wife. Plaintiff alleged that those defendants had a duty to comply with the Act “so as to give proper and adequate protection to the life of persons employed and engaged on ladders” including plaintiff. He further alleged the following:

“The ladder upon which the Plaintiff was standing was not erected and constructed in a safe, suitable and proper manner, and was not so erected, constructed, placed and operated, so as to give the proper and adequate protection to the life and limb of any person employed thereon, including Plaintiff in that:
(a) The ladder was of an inadequate height and width for safe standing and movement;
(b) The ladder was in a dangerous and hazardous condition;
(c) The ladder had no safety railings;
(d) The ladder had no place to secure hand holds;
(e) The ladder was not erected, placed and operated so as to give proper and adequate protection.”

Plaintiff claimed that defendants “knew or should have known or did fail to discover” violations of the Act, and these violations were the proximate cause of his injury.

In a deposition held on September 22, 1981, plaintiff described the circumstances surrounding his accident. On the day before the accident, plaintiff’s father warned him about the high voltage wires over the work area that had insulation which had worn thin in places. The accident occurred around 2:20 p.m. on August 9, 1980. There was water on the roof where plaintiff was working. After placing the ladder in position, plaintiff stood on the stable wooden ladder to install electrical wires. It was the proper height for the job. He would use it again if he had to do the same work again, and no other type of ladder would have been safer to use. He was pushing the wires down a service head with his hands. He was not using any tools nor was he wearing a tool belt. The ladder stood on a piece of plywood. Plaintiff had no recollection of his electrical shock. His next memory was awakening on the roof and asking a neighbor, who had been on the roof observing him work, if his leg was broken. Subsequently, plaintiff was in and out of consciousness. Later the neighbor told plaintiff that when he received the shock, he glowed red and did not breathe for a few minutes. The neighbor was unable to resuscitate plaintiff because plaintiff’s teeth were clenched. Plaintiff had no recollection of whether or not he fell off the ladder. His father theorized that the wires broke.

Defendants responded to plaintiff’s complaint with motions for summary judgment on those counts premised on violations of the Act. The trial court gave judgment for defendants and against plaintiff stating that the ladder was not the proximate cause of plaintiff’s injuries but was merely a device which provided access to his work. According to the trial court, “the dangerous condition [electrical wires] would be present no matter what structure nor how safe the structure. There is no claim here that the ladder should have been insulated or have guard rails to prohibit it from coming in contact with the electricity. The theoretical device that plaintiff would claim to be ‘safe’ would [under the facts of this case] be a device that would prevent plaintiff from having access to the work.” Plaintiff appeals from the grant of summary judgment for defendants.

At issue in this case is whether plaintiff established a cause of action against defendants under the Structural Work Act. Plaintiff argues that the purpose of the Act is to provide persons involved in hazardous construction activities with protection from serious injury and a remedy for the failure to provide them with a safe place to work. The positioning of a ladder in a place which jeopardizes a worker’s life can be a violation of the Act. Plaintiff claims that the ladder was so placed that he came within a few feet of dangerous uninsulated high tension lines. According to plaintiff, whether the ladder was improperly placed is an issue of fact for the jury to decide as well as whether the violation of the Act was the proximate cause of his injuries.

The Structural Work Act provides in pertinent part:

“[S]caffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Ill. Rev. Stat. 1979, ch. 48, par. 60.)

The object of the Act is to prevent injuries to persons employed in dangerous and extrahazardous occupations so that negligence on their part in the manner of doing their work might not prove fatal. Nevertheless, it is still necessary that the statutory violation of the defendant be a contributing cause of plaintiff’s injury to sustain liability under the Act. Where the statutory violation does not contribute to proximately cause plaintiff’s injury, and where only plaintiff’s negligence causes the injury, then no liability arises under the terms of the statute. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 573, 408 N.E.2d 117, 119-20.) In order to accomplish its purpose, our courts have adopted a liberal construction of the Act. Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393, 398 N.E.2d 382, 387.

In an action brought under the Structural Work Act, plaintiff must prove that (1) he was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused his injuries; (6) the defendant had charge of the work; and (7) the defendant willfully violated the Act’s safety standard. St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 522-23, 439 N.E.2d 12, 15.

In our opinion, plaintiff’s complaint is fatally defective because no defect in the construction or use of the ladder caused his injuries. At his deposition, plaintiff stated that the wooden step ladder was stable, in good condition, and the proper height. Plaintiff himself placed the ladder in its position on the roof. He would use the same ladder if he had to perform the same work again. No other type of ladder would have been safer to use on the day of the accident. The day before the accident, his father had warned him about the high voltage wires. In the instant case, the danger was caused by the overhead electrical lines, not by the ladder.

The question of proximate cause under the Structural Work Act is ordinarily a question of fact for the jury and becomes a question of law only when facts are not disputed and where there can be no difference in the judgment of reasonable men on inferences to be drawn. Summary judgment may be proper where the material facts are not in dispute and the controversy is over the proper construction of the Act and whether the facts sustain a cause of action. (St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 524, 439 N.E.2d 12, 16.) We hold that the ladder did not cause plaintiff’s injury and that the trial court properly granted summary judgment to defendants.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, J., concurs.

PRESIDING JUSTICE LINN,

dissenting:

I respectfully dissent from the decision of my colleagues.

The Structural Work Act provides in pertinent part that

“[A]ll *** ladders *** shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.)

It is clear from the plain language of the statute that an unsafe erection, placement, or operation of a ladder, which gives improper and inadequate protection to the life and limb of an employee engaged thereon, may be a violation of the Act. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 574, 408 N.E.2d 117, 120.) To hold defendants liable under the Act, plaintiff must therefore prove, inter alia, that (1) the ladder upon which he was working was not erected in a safe, suitable and proper manner or was not placed or operated so as to give adequate protection to his life and limb, and (2) that the improper erection or placement of the ladder caused his injuries. (McInerney v. Hasbrook Construction Co. (1973), 16 Ill. App. 3d 464, 468, 306 N.E.2d 619, 622, affd in part & rev’d in part on other grounds (1975), 62 Ill. 2d 93, 338 N.E.2d 868.) Liability, therefore, hinges on issues of causation.

As the majority notes, the question of proximate cause under the Structural Work Act is ordinarily a question of fact for the jury and becomes a question of law only when facts are undisputed, and where there can be no difference in the judgment of reasonable men on the inferences to be drawn. (Wilson v. Illinois Bell Telephone Co. (1974), 19 Ill. App. 3d 47, 49, 310 N.E.2d 729, 731.) Based largely on plaintiff’s deposition testimony, the majority has found, as a matter of law, that (1) the ladder was not “defective,” (2) the ladder was not the proximate cause of plaintiff’s injuries, and that therefore (3) there was no violation of the Structural Work Act.

In order to affirm the trial court’s grant of summary judgment, the majority must also have found that no genuine issue as to any material fact exists between the parties (Kusiciel v. La Salle National Bank (1982), 106 Ill. App. 3d 333, 338, 435 N.E.2d 1217), and that the moving party is entitled to judgment as a matter of law. (Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 187, 419 N.E.2d 935, 938.) We cannot agree that, as a matter of law, no genuine issue as to the facts of causation exists between the parties:

“We cannot say as a matter of law that the evidence reveals no violation of the [Structural Work] Act. Although the defendant argues that the ladder was not defective, the purpose of the Act is not to protect the workmen from defective scaffolds. [Citation.] The Act provides that workmen must be provided with a safe, suitable and proper scaffold which will furnish them with proper and adequate protection. Because the statute does not define what constitutes a safe, suitable and proper scaffold, this question is one of fact to be determined by the jury. [Citations.] Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393, 398 N.E.2d 382, 387.

The finding that the ladder was not in and of itself “defective” is not dispositive for, as plaintiff notes, the Act is not directed solely towards a “defective” scaffold. (Domena v. Prince (1977), 52 Ill. App. 3d 462, 466, 367 N.E.2d 717, 720.) Thus, plaintiff’s failure to allege an inherent, structural defect does not justify the conclusion either that the ladder was not the proximate cause of plaintiff’s injury or that the Act has not been violated.

The proximate cause of an injury is generally a question of fact for the jury. (Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 394, 398 N.E.2d 382, 387.) The majority refers to several statements made by plaintiff in his deposition to support its finding that the ladder was not the proximate cause of plaintiff’s injury. Plaintiff, however, is not a safety expert (Kleeman v. Fragman Construction Co. (1980), 91 Ill. App. 3d 455, 458, 414 N.E.2d 1064, 1067); his deposition testimony is not conclusive and does not preclude him from offering additional evidence on this issue at trial. (Wood v. Commonwealth Edison Co. (N.D. Ill. 1972), 343 F. Supp. 1270, 1272.) Summary judgment cannot be granted on the basis of these statements by plaintiff. 343 F. Supp. 1270, 1272.

It therefore appears clear that (1) whether the placement and operation of the ladder was unsafe, and (2) whether this unsafe placement and operation caused or contributed to plaintiff’s injury are indeed genuine issues of material fact, and that reasonable men could differ in the inferences to be drawn from these facts.

Because proximate cause cannot, under these facts, be determined as a matter of law, and summary judgment cannot properly lie, I dissent from the majority opinion.