author: JUSTICE MEJDA

text:
    RICHARD HOLLIS, Plaintiff-Appellant, v. R. LATORIA CONSTRUCTION, INC., Defendant-Appellee.
    First District (5th Division)
    No. 82—1151
    Opinion filed September 9, 1983.
    Rehearing denied March 28, 1984.

      Brian J. McManus, of Brian J. McManus and Associates, Ltd., of Chicago (Daniel F. Capron, of counsel), for appellant.
    Crooks & Gilligan, Ltd., of Chicago (John W. Gilligan, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Richard Hollis, appeals from the circuit court’s denial of his post-trial motion, which sought a new trial on damages only or, alternatively, a new trial on all issues. The circuit court had entered judgment on a jury verdict of $30,000 in favor of plaintiff and against defendant, R. Latoria Construction, Inc. On appeal, plaintiff asserts that the trial court erred in denying his post-trial motion in that the jury’s verdict was inadequate and against the manifest weight of the evidence. For the reasons which follow, we reverse the order denying the post-trial motion and remand for a new trial on the issue of damages only.

Plaintiff brought this suit under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) against defendant to recover damages for injuries sustained when plaintiff fell through an open skylight on April 19, 1977. On that day plaintiff was employed as a roofer by a subcontractor at the construction site of an addition to the Industrial Fasteners and Supply Company building in Franklin Park, Dlinois. The defendant, R. Latoria Construction, Inc., was the general contractor for the construction.

Rocco Latoria testified that he is engaged in the general contracting business through R. Latoria Construction, Inc. He had contracted to build an addition to the Industrial Fasteners and Supply Company plant and had hired several subcontractors to perform various phases of that work. Latoria visited the construction site two or three times a day in March and April of 1977. Every day he noticed that each of the seven 4 feet by 4 feet skylight holes was open. He testified that he had the authority to stop work if the subcontractors were performing improperly, but he asserted that this authority did not include the right to stop work for safety violations. He testified on cross-examination that each trade was responsible for its own safety rules and protection. On redirect examination by plaintiff, Latoria testified that protective planking would have been placed over the open skylight holes if the plans had so specified, which they did not. Latoria stated that “[guardrails and safety measures are all part of the plans and specifications.” He admitted that he had hired the architect and the draftsman who drew up the plans and that he, Latoria, had the right to direct these people to provide in the plans for plywood covers for the open holes until the skylight domes were installed.

Daryl Torgerson, who is a self-employed roofer, testified that customarily in the construction and roofing trade, the general contractor is responsible for safety on the job and has the right to stop the work for dangerous conditions created by a subcontractor’s performance. He testified that the pay rate is now $15.80 for a journeyman roofer, and that other benefits include health and welfare, pension, and vacation benefits. Torgerson also testified on cross-examination that the construction industry has been “way off” the past three years and that he had worked 40-44 weeks per year between 1970 and 1978. He did not indicate how many weeks he worked in each of the subsequent years.

Louis Jacobs is a consulting architect and safety engineer. He testified that according to the custom and practice in the industry, the general contractor is in charge of safety. He further testified that the general contractor assumes the entire responsibility for safety, while the subcontractors share joint responsibility with the general contractor for subcontracted work. Jacobs also indicated that various industry and government codes require railings, guardrails, toeboards, or covers over open skylights. In his opinion, the construction project “with the openings in the roof for seven skylights is in violation of all code and standard rules and regulations.” The specific violation was “the leaving of the skylight open without any protective devices.”

Plaintiff testified that on the day of the accident he slept late and got to the job site around 9 a.m. The roof of the addition was made of corrugated sheet metal with six or seven open skylights already installed. The sheet metal roof contained ridges and channels which ran the full length of the roof. The ridges were about three inches wide and were separated from each other by the channels which are about an inch and a half wide. Plaintiff was operating an adhesive-spreading machine as part of the roofing operation. This machine has wheels which should remain on the ridges of the roof during the adhesive-spreading process so that the adhesive is applied to the ridges, on which the other roofing material will rest. The machine is usually operated by pulling it behind the operator, to avoid walking through the freshly applied adhesive. The operator typically walks backward or sideways in order to observe the wheels of the machine and to keep them properly tracked on the ridges. On the morning of the accident, plaintiff was pulling the machine with his left hand and walking sideways. He finished spreading adhesive between the first and second skylight and then started the spreader between the next pair of skylights. At this time he fell backwards. His left leg hit the back of the skylight opening and he fell about 18 feet to a hard-packed dirt floor, landing on his hands and knees.

Initially, plaintiff felt no pain and tried unsuccessfully to stand up. His arms were “distorted” and his left elbow and right wrist were obviously fractured. An ambulance arrived in about 10 minutes, by which time he had shooting plains in his right arm and left elbow and a throbbing pain in his left knee. He was admitted to a local hospital where he was X-rayed. Dr. Milos performed a surgical procedure during which plaintiff was under a general anesthetic. He awoke with a cast on his left leg from the ankle to the thigh, and a cast on both of his arms. He remained in the hospital for seven days.

When plaintiff was discharged from the hospital he was unable to walk. He could open and close his left hand but could not bend his left arm at the elbow, which also suffered from a throbbing pain. An area on the top of the left forearm was numb. Plaintiff could bend his left leg very slightly and could walk on it some, although with a limp. The leg was weak, with a “dull” sensation around the knee. His right wrist developed shooting pains which ran to the elbow.

Plaintiff underwent physical therapy three times a week for two months and then once a week for two months. At the end of this time he was still unable to bend his left arm. In September of 1977 he underwent a second surgical procedure and was hospitalized for three days. Another cast was placed on the arm and remained there for five weeks. At the end of that time, Dr. Milos removed the cast. Plaintiff was able to bend the arm somewhat.

Plaintiff testified that he currently experiences various types of pain in his extremities, especially during weather changes, that his knee will not support him if he walks a long way or up steep steps, and that he is physically unable to perform manual labor for periods of time exceeding a half hour.

Plaintiff also testified that at the time of his fall he was able-bodied with no physical problems, except for a bad ear. He was a journeyman roofer making $11.50 an hour when he was injured. The union hourly wage scale increased to $12.30 on June 1, 1978, to $13.05 in 1979, $14.30 in 1980, and $15.80 in 1981. These hourly rates did not reflect other additional benefits, including pensions. Plaintiff testified that he worked between 45 and 48 weeks each year. After his fall, he did not work at all for a year and a half. He presently drives a delivery truck for $5 per hour.

John Megall, Jr., president of plaintiff’s former employer, testified that plaintiff worked 41 weeks in 1975 and 34 weeks in 1976, and that full-time employees worked an average of 38 weeks per year. He indicated that roofing crews did not work during snow and cold weather.

Dr. Alvin Kanter is a physician and orthopedic surgeon. He testified that he examined plaintiff on several occasions beginning on July 22, 1977, which was after plaintiff had been discharged from the hospital for the first time and after the casts had been removed for the first time. Plaintiff complained of residual limitation of motion and discomfort in the left elbow and discomfort in the right wrist. The left wrist exhibited some deformity, limitation of motion, and discomfort on extremes of motion. The left elbow exhibited substantially significant limitation of motion: only 10° toward himself and 15° away. There was “absolutely no pronation” of the palm. X rays revealed a residual fracture deformity with a medial fracture of the distal radius. Some calcification along the ligaments and lining of the joints with the displaced fragments of the radial head was also apparent. Plaintiff had suffered a fracture dislocation of the left elbow, which meant that the elbow was dislocated and the radial head was fragmented, with pieces lodging in the joints.

Dr. Kanter subsequently examined plaintiff on December 29, 1981, after plaintiff had undergone a second surgery. This operation improved the range of motion although it was still “significantly limited,” particularly the ability to pronate the hand. Whereas a normal pronation is 90°, plaintiff was only able to pronate his palm about 10°. The left elbow remained unable to straighten fully and the right wrist suffered from a limited palmar flexion. A normal flexion is 90° and plaintiff could achieve only 75° due to a deformed and tilted radius. Two healed fracture lines observable on X rays accounted for the deformity. X rays indicated that the left elbow joint was not smooth, but had irregularities, including a spur off the humerus, almost abutting the radial head. This created an area of potential blockage to the elbow joint and indicated the presence of arthritis in the joint. This type of arthritis tends to be progressive and degenerative with time. This condition accounts for plaintiff’s complaints of stiffness, constant aching, and increased discomfort with weather changes as well as the limitation of motion of the elbow. The inability to use the arm normally leads to a generalized atrophy in the upper left arm. Surgical removal of the spur would improve use of the arm, although it would not fully restore it, and there is a significant chance that spurring will recur after the operation.

Dr. Kanter testified that the left knee suffered atrophied muscles, limitation of motion, grating along the inside of the knee joint, and tenderness along the medial joint line. This is consistent with internal derangement of the joint, specifically a tear of the medial meniscus cartilage. Without treatment, this condition can cause arthritis and bring about significant arthritic changes within 20 years. Dr. Kanter recommended arthroscopic surgery to treat this condition.

Dr. Kanter testified that, in his opinion, the wrist injury alone was sufficient to cause disability in work. The conditions of both arms and the knee are permanent if untreated. Even with surgery, the injury to the right wrist and left elbow are permanent. In his opinion, plaintiff is unable to return to roofing work or any other construction trade.

The defense presented limited testimony. On section 60 examination plaintiff testified that he had backed into the open skylight. The defense presented no medical or other expert witnesses. Prior to trial the defendant had filed an “affirmative defense” which alleged that the sole proximate cause of the plaintiff’s injuries was his own misconduct. At the close of the evidence, the trial court struck the defense. During closing argument, however, defense counsel argued that plaintiff was the proximate cause of the accident.

“The way he was doing his work was improper. If he was doing his job properly there would have been no accident. I submit to you that Mr. Hollis himself was the proximate cause of this accident and I’ll submit to you further that the way this accident occurred, he could have walked off the roof of the building just as easily as backed into that hole. Every one of us has to conduct ourselves [sic] in a certain careful way.
[Plaintiff’s counsel]: Your Honor, I’m going to object to his line of comments. It’s beyond the Structural Work Act and contrary to its terms.
THE COURT: You may proceed.
[Defense counsel]: In everything we do, we must do it in a reasonable method or manner. We cannot just go willy-nilly across the middle of the street in heavy traffic and close our eyes, for instance. The law of the Structural Work Act was not intended to protect careless people who fall into holes. The Structural Work Act is a good law. It sets out certain things that are just common sense. It is not intended — No law is intended to protect the foolish behavior and reckless wanton conduct.
[Plaintiff’s counsel]: Same objection.”

After a sidebar conference, the objection was overruled.

After being instructed by the court, the jury deliberated and returned a verdict of $30,000 in favor of the plaintiff and against the defendant. The trial court denied plaintiff’s post-trial motion and plaintiff has appealed.

Opinion

Plaintiff contends that because the damages awarded by the jury were palpably inadequate, he is entitled to a new trial on damages only or, alternatively, on all issues. The general rule is that

“the amount of damages to be awarded is within the jury’s sound discretion. That discretion, however, is not without limitation. [Citation.] If the damages awarded are manifestly inadequate or if an important element of the damages has been overlooked, then the reviewing court may order a new trial for inadequacy of damages. [Citations.] When the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff, the verdict may be overturned.” (Stamat v. Merry (1979), 78 Ill. App. 3d 445, 448, 397 N.E.2d 141.)

In the instant case, the plaintiff was unemployed for 18 months after his fall. This period of unemployment occurred before the general depression of the construction industry which, according to trial testimony, began sometime in 1979. The evidence indicated that the average full-time roofer at plaintiff’s place of employment worked 38 40-hour weeks per year. During 1975 and 1976, the only full years in which plaintiff was employed as a roofer, his employer testified that he worked 41 and 34 weeks, respectively. Taking the lowest figure in evidence, 34 weeks, as the basis for calculation, for the first year after plaintiff’s fall, he lost 1,360 hours at $11.50 per hour for a wage loss of $15,640. During the subsequent six months he would have worked 17 weeks or 680 hours at $12.30 for a wage loss of $8,364. This is a total wage loss of slightly over $24,000. There is no evidence that plaintiff would have worked fewer hours, been laid off, or worked for lower wages. Although there was some indication that roofing was a seasonal business, we believe the 34-week figure adequately accounts for seasonal variations. Consequently, the wage loss was sufficiently established. (Kelty v. Wiseman Construction Co. (1976), 38 Ill. App. 3d 808, 812, 349 N.E.2d 108.) This $24,000 figure does not include wages lost as a result of taking much lower-paying jobs upon eventually re-entering the work force. Yet, the remaining $6,000 awarded by the jury was supposed to compensate plaintiff for his loss of future earnings, his past and future pain and suffering, and his disability and disfigurement resulting from the injury. In view of the extent and permanence of plaintiff’s injuries, the damages awarded by the jury are manifestly inadequate. See Stamat v. Merry (1979), 78 Ill. App. 3d 445, 448, 397 N.E.2d 141.

Because we have concluded that the damages awarded are inadequate, we must now determine whether a new trial on all issues or on damages only is appropriate. 78 Ill. App. 3d 445, 449.

“[A]n appellate court may set aside an inadequate verdict and order a new trial solely on the issue of damages in a proper case, that is, in a case where the damage issue is so separable and distinct from the issue of liability that a trial of it alone may be had without injustice.” (Paul Harris Furniture Co. v. Morse (1956), 10 Ill. 2d 28, 46, 139 N.E.2d 275.)

The supreme court has interpreted this holding as involving a three-step analysis. (Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391; Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224, 380 N.E.2d 786.) A new trial on the question of damages only is appropriate where

“(1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.” Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224.

The initial inquiry in our analysis is whether the jury’s verdict on the question of liability is “amply supported by the evidence ***.” (Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224.) The defendant’s potential liability in the case sub judice is imposed by the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69), which provides in pertinent part that:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of . this act, shall comply with all the terms thereof ***.
* * *
For any injury to person or properly, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 69.)

Under this statute liability accrues to a person who has charge of the work and who commits a wilful violation of the statute which proximately causes plaintiff’s injury. (See McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 101-02, 338 N.E.2d 868.) The expert testimony was evidence of a violation of the statute in that the failure to cover or guard the open skylight violated various safety standards. (Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 13, 415 N.E.2d 599.) Latoria’s testimony that he saw the open skylights every time he visited the construction site established the wilful nature of the violation within the meaning of the statute. (McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 102, 338 N.E.2d 868 (“wilful” means “knowing” in context of the Structural Work Act).) These issues have not been pursued on appeal. Defendant argues, however, that its liability was not sufficiently established because the evidence conflicted on whether it was “in charge of” the work within the meaning of the statute. The question of who has charge of the construction is a question of fact for the jury. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 485, 394 N.E.2d 403.) A mere conflict in the evidence is insufficient to undermine the jury’s assessment of liability (see 76 Ill. 2d 481, 491); the record need only demonstrate that there was sufficient evidence from which the jury could find that the defendant “was one of the persons ‘having charge of’ the construction ***.” (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 123, 373 N.E.2d 1348.)

“The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute.” (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 321-22, 211 N.E.2d 247.)

In the instant case, testimony concerning the right to stop work and the responsibility for safety was conflicting. The jury could have concluded from this testimony that the defendant was in charge of the work. Even more telling, in our view, is Rocco Latoria’s testimony that safety measures are part of the plans for a job and that planking would have covered the open holes had he instructed the architect and draftsmen to provide so in the plans. This demonstrates a sufficient degree of control over this aspect of the construction to warrant a finding that defendant was in charge of the work. We conclude that the record discloses a sufficient evidentiary basis for the jury’s finding of liability.

The next step in our analysis is whether the questions of damages and liability are so distinct that a trial limited to the question of damages is not unfair to the defendant. (Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 224, 380 N.E.2d 786.) Under the Structural Work Act the question of liability is not complicated by issues of contributory negligence or concurrent fault, as these are not defenses to the liability imposed by the statute. (Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 510, 440 N.E.2d 973.) The standard of liability under the statute is not negligence but wilfulness. (See Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 466, 419 N.E.2d 918.) The unavailability of these defenses renders the issue of liability so distinct from the question of damages that we perceive no prejudice to the defendant in a retrial limited to the latter issue.

The third area of inquiry is whether the record suggests that the jury reached a compromise verdict or that some other error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability. (Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 380 N.E.2d 786.) In our judgment, the jury’s inadequate damage award does not indicate a compromise on the issue of liability, but rather is directly traceable to defense counsel’s improper closing arguments. As noted above, a plaintiff’s contributory negligence is not a defense to the liability imposed by the Structural Work Act and testimony concerning a plaintiff’s culpable conduct is therefore irrelevant in a suit brought under the statute. (Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 510, 440 N.E.2d 973; Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 573, 408 N.E.2d 117.) Of course, “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. [Citation.] Where the statutory violation does not contribute to proximately cause plaintiff’s injury, and where only plaintiffs negligence causes the injury, then no liability arises under the terms of the statute.” (Emphasis added.) (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 573.) This statement of the law does not contemplate a “but for” analysis of a plaintiff’s conduct as a cause of his injuries; all that is required is that the statutory violation “contributes” to cause plaintiff’s injuries.

In the instant case, there is no question that the failure to cover the skylight hole was a contributing cause of plaintiff’s injuries and it follows, therefore, that plaintiff’s own negligence was not the sole proximate cause of his injuries. The trial court’s striking of the affirmative defense at the close of the evidence tacitly supports this conclusion. Significantly, the defendant has not challenged on appeal the propriety of this action. Accordingly, plaintiff’s misconduct was not an issue in the case at the closing argument stage. Nonetheless, defense counsel’s argument not only drew the jury’s attention to the plaintiff’s carelessness, but went so far as to impute wilful and wanton misconduct to the plaintiff with comments such as “No law is intended to protect the foolish behavior and reckless wanton conduct.” Plaintiff’s timely objections to this and similar remarks were overruled by the trial court. These comments were not relevant to any issue in the case and were obviously prejudicial. Under these circumstances, it is readily apparent that the jury reduced the damages awarded to plaintiff as a result of the improper argument. (See Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 510-11, 440 N.E.2d 973, 980.) We conclude that, in light of the jury’s palpably inadequate damage award, the ample evidence of defendant’s liability (including the expert testimony and Latoria’s own testimony), the severability of the liability and damage issues, and the lack of evidence indicating a compromise verdict, the trial court’s denial of plaintiff’s post-trial motion should be reversed and a new trial granted on the issue of damages only.

Other issues presented for decision are unlikely to reoccur on retrial of this cause and therefore are unnecessary for decision (see Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 480, 368 N.E.2d 990).

For the reasons stated, the order denying plaintiff’s motion for a new trial is reversed and the cause is remanded for a new trial on the issue of damages only.

Order reversed; remand as to damages only.

WILSON, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    THE FIDELITY & CASUALTY COMPANY OF NEW YORK, Plaintiff-Appellee, v. ENVIRODYNE ENGINEERS, INC., et al., Defendants (Envirodyne Engineers, Inc., Defendant-Appellant).
    First District (4th Division)
    No. 83—803
    Opinion filed December 29, 1983.
    Rehearing denied March 22, 1984.

      Jay A. Schiller, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, Frank L. Schneider, and Lisa D. Marco, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises from the trial court’s determination in a declaratory judgment proceeding that the plaintiff, The Fidelity & Casualty Company of New York (Fidelity), was under no obligation to defend or indemnify its insured, defendant Envirodyne Engineers, Inc. (Envirodyne), in a separate personal injury claim filed by one Ben E. Guzman. Envirodyne was insured by Fidelity under a comprehensive general liability policy. The policy contained an exclusion providing: “It is agreed that the insurance does not apply to bodily injury or property damage arising out of the rendering of or the failure to render any professional services by or for the names insured including *** supervisory, inspection or engineering services.”

Guzman was allegedly injured while working as an employee at a construction project. Envirodyne was engaged as the project’s consulting engineer by the Illinois State Toll Highway Authority. Guzman brought suit against both Envirodyne and the Highway Authority, alleging that both parties had violated the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60-69) and that both parties were also liable in negligence.

Fidelity defended Envirodyne in the Guzman case under a reservation of rights. It concurrently filed a suit for a declaratory judgment against Envirodyne alleging that Envirodyne’s activities at the job site “were ‘supervisory, inspection or engineering services’ within the purview of” the endorsement in their policy. Therefore, Fidelity contended, Envirodyne had no coverage under the policy and Fidelity was under no obligation to defend or indemnify Envirodyne in the Guzman lawsuit. The trial court granted summary judgment in favor of Fidelity and against Envirodyne. Envirodyne now appeals.

Two broad contentions have been argued by Envirodyne throughout its brief. Envirodyne first contends that the court in the declaratory judgment proceeding improperly looked beyond the complaint in the underlying personal injury case when it ruled upon Fidelity’s duty to defend Envirodyne in the Guzman lawsuit. The second argument raised by Envirodyne is that the declaratory proceeding determined one of the ultimate issues upon which recovery was predicated in the Guzman case and that the trial court’s ruling was therefore improper under Maryland, Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.

We shall first address Envirodyne’s contention that the trial court may look only to the complaint in the underlying lawsuit when determining, in a separate declaratory judgment action, whether an insurer owes a duty to its insured to defend the insured in the underlying action. In the case at bar, Guzman’s complaint states that Envirodyne and the Highway Authority “erected, constructed, placed or operated or caused to be erected, constructed, placed or operated, a certain scaffold ***.” It was undisputed during appellate oral arguments that the above-quoted language is the only portion of the Guzman complaint which could conceivably fall within the confines of the general liability policy issued by Fidelity. If Envirodyne physically constructed the scaffold, there would be coverage under the general liability policy; however, if Envirodyne acted only as a consulting engineer, there would be no coverage because of the exclusion.

Prior to granting summary judgment in the declaratory proceeding, the trial court examined the contract between Envirodyne and the Highway Authority. The contract stated that Envirodyne’s duties at the construction site were limited to those of a consulting engineer. In addition, over Envirodyne’s objection, the trial judge ordered the deposition of Michael Endress, who was a professional engineer and the assistant vice-president of Envirodyne. Endress stated that Envirodyne was an engineering firm, that Envirodyne was the general consultant for the Highway Authority and that he was unaware of any functions performed by Envirodyne at the job site other than

those which were architectural or engineering in nature. In conjunction with the contract and the deposition, the trial judge also considered the decision in Wheeler v. Aetna Casualty & Surety Co. (1973), 11 Ill. App. 3d 841, 854, 298 N.E.2d 329, 338, vacated, as moot (1974), 57 Ill. 2d 184, 311 N.E.2d 134, where the court took judicial notice “that employees of contractors and subcontractors place and operate hoists and that architects and their employees never do so.” Envirodyne argues that the trial court was bound to look only to the Guzman complaint when it determined the issue of coverage and that it therefore improperly considered the Highway Authority contract and the Endress deposition. We disagree.

The well established general rule is that the allegations in the complaint in the underlying action determine an insurer’s duty to defend its insured. (See, e.g., Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; Annot., 50 A.L.R.2d 458, 465 (1956 & Supps. 1967, 1983).) In conjunction with this general rule, however, the law states that when an insurer is in doubt regarding its duty to defend, it may seek a declaratory judgment as to its obligations and rights or defend the insured under a reservation of rights. (Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123; see also Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) The insurer may concurrently seek a declaratory judgment and defend under a reservation of rights, as Fidelity did in the instant case. Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 239 N.E.2d 498.

Based upon the law above recited, we find no support for Envirodyne’s contention that the court may not look beyond the underlying complaint even in a declaratory proceeding where the duty to defend is at issue. It is certainly true that the duty to defend flows in the first instance from the allegations in the underlying complaint; this is the concern at the initial stage of the proceedings when an insurance company encounters the primary decision of whether to defend its insured. However, if an insurer opts to file a declaratory proceeding, we believe that it may properly challenge the existence of such a duty by offering evidence to prove that the insured’s actions fell within the limitations of one of the policy’s exclusions. (See 7C Appleman, Insurance Law & Practice sec. 4683, at 53 (1979); see also Kepner v. Western Fire Insurance Co. (1973), 109 Ariz. 329, 509 P.2d 222; Employers’ Fire Insurance Co. v. Beals (1968), 103 R.I. 623, 240 A.2d 397.) The only time such evidence should not be permitted is when it tends to determine an issue crucial to the determination of the underlying lawsuit (see Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; Employers’ Fire Insurance Co. v. Beals (1968), 103 R.I. 623, 240 A.2d 397), a concern which shall be addressed in depth later in this opinion. If a crucial issue will not be determined, we see no reason why the party seeking a declaration of rights should not have the prerogative to present evidence that is accorded generally to a party during a motion for summary judgment in a declaratory proceeding. To require the trial court to look solely to the complaint in the underlying action to determine coverage would make the declaratory proceeding little more than a useless exercise possessing no attendant benefit and would greatly diminish a declaratory action’s purpose of settling and fixing the rights of the parties. Envirodyne offers no authority to support this untoward result.

While we have been unable to find an instance where the issue of admitting evidence beyond the underlying complaint has been squarely addressed before, we have encountered a number of Illinois cases where evidence was apparently presumed to be admissible in declaratory judgment proceedings such as the one at issue here. In Mid America Fire & Marine Insurance Co. v. Smith (1982), 109 Ill. App. 3d 1121, 441 N.E.2d 949, the trial court considered documents, including deposition testimony, when ruling on an insurer’s duty to defend in a motion for summary judgment in a declaratory proceeding. In two other Illinois cases, the court went beyond the underlying complaint to take judicial notice of the scope of the duties performed by professional architects and engineers. (Wheeler v. Aetna Casualty & Surety Co. (1973), 11 Ill. App. 3d 841, 298 N.E.2d 329, vacated as moot (1974), 57 Ill. 2d 184, 311 N.E.2d 134; Sheppard, Morgan & Schwaab, Inc. v. United States Fidelity & Guaranty Co. (1976), 44 Ill. App. 3d 481, 358 N.E.2d 305.) Furthermore, although the case was approached under a different procedural setting than that encountered here, the supreme court found that it was permissible to go beyond the complaint on the issue of coverage in Thornton v. Paul (1979), 74 Ill. 2d 132, 384 N.E.2d 335. There the court looked to a criminal conviction as prima facie evidence of the facts upon which it was based to hold that an insured’s conduct fell within an exclusion of his insurance policy. We believe that the above cases are sufficiently analogous to the case at bar to lend support for allowing evidence beyond the complaint in a declaratory judgment action such as the one at issue here.

Before progressing to the next issue on appeal, we believe it important to distinguish this case, where the insurer exercised its options to defend under a reservation of rights and to file a declaratory judgment action, from those cases where the insurer elects neither option and refuses to defend an insured who ultimately incurs an adverse judgment. In the latter case, the insurer is estopped from raising noncoverage as a defense to an action brought to recover policy proceeds and therefore, the insurer is necessarily bound to the allegations in the underlying complaint. (See Sims v. Illinois National Casualty Co. (1963), 43 Ill. App. 2d 184, 193 N.E.2d 123; see also Shaw v. Aetna Casualty & Surety Co. (7th Cir. 1969), 407 F.2d 813.) However, when an insurer has elected to either defend under a reservation of rights or file a declaratory judgment action, this estoppel concept does not arise (see Ayers v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 424 N.E.2d 1316) and the insurer may present evidence beyond the underlying complaint, so long as it does not tend to determine an ultimate issue in the underlying proceeding.

We must next decide whether the trial court improperly determined an ultimate fact in the underlying action when it granted summary judgment in favor of Fidelity in the declaratory proceeding. The leading Illinois Supreme Court case in this area is Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24. In Peppers, the plaintiff in the underlying tort case alleged intentional, negligent, and wilful and wanton conduct on the part of the insured party. The insured and the insurer were parties to an insurance policy which contained an exclusion for intentionally inflicted injuries. The insurer filed suit for a declaratory judgment, alleging that the insured’s conduct was intentional and that therefore, the policy exclusion was applicable. In the declaratory proceeding, the trial court found that the insured had intentionally injured the plaintiff in the underlying tort case and that consequently, there was no coverage under the policy. The supreme court found that the trial court had abused its discretion by ruling on the intentional injury issue prior to the completion of the underlying tort action. Specifically, the trial court’s ruling was premature because it had determined one of the ultimate facts upon which recovery was predicated in the underlying case and because the underlying plaintiff would be wrongfully estopped from raising one of his theories of recovery, namely that of negligent conduct, in the underlying tort case. The supreme court therefore vacated the trial court’s ruling as being premature. See also State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 257, 430 N.E.2d 641, 647 (“the court in the declaratory judgment action cannot determine the ultimate question of the insured’s liability [or] the facts upon which such liability is based”).

In Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, an insurance policy contained an exclusion for injury arising out of assault and battery. The supreme court observed that “it would not be appropriate” for the insurer to seek a declaratory judgment that the insured’s conduct constituted a battery and was therefore beyond the coverage of the policy. Relying upon Peppers, the court stated: “In such a proceeding, an issue crucial to the insured’s liability in the personal injury action and also one on which punitive damages could ultimately be assessed would be determined in a purely ancillary proceeding with the plaintiff and defendant in the personal injury action both aligned on the same side as defendants in the declaratory judgment action. Also, the order and burden of proof would be oriented to and dictated by the declaratory judgment action and not by the primary litigation, the personal injury suit.” 74 Ill. 2d 132, 159, 384 N.E.2d 335, 346.

Both Peppers and Thornton are instructive as to what matters cannot be determined in a declaratory judgment proceeding prior to the completion of the underlying action. Peppers states that an ultimate fact upon which recovery is predicated in the underlying case may not be addressed. The court’s language suggests that an ultimate fact is one which would estop the plaintiff in the underlying case from pursuing one of his theories of recovery. Thornton implies that an ultimate fact is one in which “an issue crucial to the insured’s liability” in the underlying case is determined. Apparently only then would the inequities surface in regard to alignment of the parties and the order and burden of proof, because those matters necessarily arise in any declaratory judgment proceeding brought before completion of the underlying lawsuit. Thus, in examining the facts in the instant case, we must decide whether the plaintiff in the underlying lawsuit would be estopped from raising a theory of recovery or if the trial court decided an issue crucial to the insured’s liability in the underlying case.

The sole issue determined by the trial court in the declaratory proceeding was the nature of the services performed by Envirodyne at the construction site. Specifically, the court found that any actions taken by Envirodyne at the job site were performed in its capacity as a consulting engineer. We do not see where this determination in any way estops the underlying plaintiff from raising a theory of recovery or decides any issue crucial to the underlying litigation. The allegations set forth in the underlying complaint are violations of the Structural Work Act and negligence. A finding that Envirodyne performed as a consulting engineer in no way diminishes either theory of recovery advanced by the underlying plaintiff. Similarly, the fact that Envirodyne acted as a consulting engineer at the job site is not an issue crucial to Envirodyne’s liability in the underlying case; the ultimate, or crucial, queries in this case revolve around whether Envirodyne was “in charge” of the construction, whether Envirodyne “wilfully” violated the Structural Work Act or whether Envirodyne acted negligently. None of these questions hinges upon whether Envirodyne did or did not serve in the capacity of consulting engineer for the construction project. In contrast, when the trial court in the Peppers case decided that the insured had acted intentionally, the court in effect decided the intentional tort count pleaded in the underlying plaintiff’s case. Similarly, in Thornton, if the trial court had decided that the insured’s conduct constituted a battery, it would have decided an issue that was central to the insured’s liability in the underlying case. No analogous situation arises in the case at bar. A finding that Envirodyne was acting in a professional capacity could in no way determine whether Envirodyne violated the Structural Work Act or whether Envirodyne acted negligently. We conclude that the nature of Envirodyne’s services at the job site was not an issue of ultimate fact and that therefore, the trial court properly determined the issue of coverage in the declaratory proceeding by looking to facts beyond those contained in the underlying complaint.

For the foregoing reasons, the judgment of the trial court is affirmed.

ROMITI, P.J., and JOHNSON, J., concur.

      A related but different situation may arise when the insurer defends its insured in the underlying action but does not either defend under a reservation of rights or file a declaratory judgment proceeding. If the insurer later contests the issue of coverage, it may be estopped from denying its own liability under the policy. (See Apex Mutual Insurance Co. v. Christner (1968), 99 Ill. App. 2d 153, 240 N.E.2d 742.) It is generally the rule in such a case that the insured must demonstrate prejudice in order to estop the insurer from asserting a defense of noncoverage. See Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24.


author: PRESIDING JUSTICE BUCKLEY

text:
    FRED E. WAHLS et al., Plaintiffs, v. AETNA LIFE INSURANCE COMPANY, Defendant (Edward F. Wahls, Plaintiff-Appellee and Cross-Appellant; New York Life Insurance Company, Defendant-Appellant and Cross-Appellee).
    First District (1st Division)
    No. 82—2940
    Opinion filed November 21, 1983.
    Rehearing denied February 21, 1984.

      William Freivogel and Lisa Donk Lewis, both of Chicago (Ross & Hardies, of counsel), for appellant.
    Thomas P. Valenti and Sonja R. Johnson, both of Karr & Valenti, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Edward Wahls brought an action in the circuit court of Cook County to recover accidental death benefits as beneficiary under an insurance policy issued by defendant New York Life Insurance Company on the life of his sister. After both parties moved for summary judgment, the trial court granted summary judgment in plaintiff’s favor, denied defendant’s motion for summary judgment and additionally denied plaintiff’s motion for attorney fees, costs and interest. Defendant appeals the portion of the order granting summary judgment for plaintiff and denying its summary judgment motion. Plaintiff cross-appeals the denial of attorney fees, costs and interest.

The record reflects as follows. On April 23, 1981, the decedent, Ruth Ann Wahls, was found dead on the bathroom floor of her home. Decedent was single, lived alone and had a history of alcoholism. Rolled up newspapers dating from April 14, 1981, through April 22, 1981, were found on her doorstep and a neighbor had last spoken with her on April 15, 1981. A postmortem examination conducted by the Cook County Medical Examiner’s Office revealed no traces of opiates, barbiturates or alcohol in her system, and no evidence of “foul play.” Decedent had sustained a transverse fracture of the right ankle. The postmortem report concluded that the “Death is considered to be related to Fatty Liver in association with Fracture of ankle bones and history of heavy use of Ethanol.” However, the manner of death was listed in the report as “undetermined.”

Plaintiff subsequently requested the proceeds of an insurance policy issued by defendant on decedent’s life which provided $50,000 in accidental death benefits. Plaintiff was designated as beneficiary under the policy. Specifically, the policy covered losses resulting from “accidental bodily injury ***, directly and independently of all other causes.” Excluded from the foregoing coverage were losses “caused or contributed to by” infirmity of mind or body, or any illness or disease, or intentionally self-inflicted injuries, suicide or attempted suicide.

Defendant denied coverage under the policy and plaintiff brought an action to recover the accidental death benefits. Plaintiff and defendant both initially filed motions for summary judgment which were denied by the trial court due to the lack of evidence regarding decedent’s cause of death. Subsequently, the depositions of both parties’ medical experts were taken. Plaintiff’s expert testified that decedent’s cause of death was indeterminate, that he was unable to form an opinion as to her cause of death and that decedent’s various medical and death records did not provide sufficient data to permit him to speculate as to the cause of her death. He further testified that the only evidence of trauma suffered by decedent was her ankle fracture, but that the fracture was not the cause of her death. Finally, plaintiff’s expert testified that he would rule out disease as a primary cause of death. Defendant’s expert agreed that the cause of death could not be determined from the record and that the fracture could not have caused her death. Defendant’s expert also testified, however, that in his opinion it was more likely that decedent died of disease than of accident or trauma.

Upon completion of the experts’ depositions, both parties again moved for summary judgment. Plaintiff argued that it was apparent from the facts and circumstances contained in the postmortem report that decedent’s death was “accidental” as a matter of law. Defendant, however, contended that its liability was not triggered under the terms of its policy or under Illinois law until plaintiff presented evidence tending to show that decedent suffered an accidental bodily injury which caused her death. Defendant further argued that it had no duty to pay benefits to plaintiff because the record established that the circumstances and cause of decedent’s death were unknown and because the only injury suffered by decedent was not, and could not have been, the cause of her death. After a hearing, the trial court granted summary judgment for plaintiff and denied the summary judgment motion of defendant. We reverse the granting of summary judgment for plaintiff and affirm the denial of defendant’s summary judgment motion.

We initially recognize that plaintiff has the burden of proving that decedent died as a result of an accidental bodily injury within the terms of the subject policy. (Yates v. Bankers Life & Casualty Co. (1953), 415 Ill. 16, 19, 111 N.E. 516; Robinson v. Metropolitan Life Insurance Co. (1979), 74 Ill. App. 3d 698, 701, 393 N.E .2d 738.) Illinois courts, however, have adopted a liberal attitude in interpreting accidental death provisions when resolving litigation for the recovery of insurance proceeds. (See Passarella v. Board of Trustees (1969), 106 Ill. App. 2d 448, 450, 245 N.E.2d 913.) The policy in the present case, as defendant acknowledges in its reply brief, speaks in terms of “accidental results.” The concept of “accidental result” is defined as something occurring by chance or fortuitously, without intention or design, and which is unexpected, unusual and unforeseen. (Taylor v. John Hancock Mutual Life Insurance Co. (1957), 11 Ill. 2d 227, 230, 142 N.E.2d 5; Russell v. Metropolitan Life Insurance Co. (1982), 108 Ill. App. 3d 417, 420, 439 N.E.2d 89.) In Taylor, the decedent deliberately spilled 10 gallons of gasoline in a dwelling and then was incinerated when a pilot light ignited the gasoline; the death was held to be unforeseeable as a matter of law and therefore within the coverage of the accidental death provision of the insurance policy. More recently, in Russell, this court upheld the recovery of accidental death benefits where the decedent’s death resulted from the consumption of a lethal quantity of alcohol.

In the case at bar, the trial court apparently found, as a matter of law, that decedent’s death was unforeseeable and unintended, and granted summary judgment for plaintiff. In reviewing the trial court’s entry of summary judgment, it is the function of the appellate court to determine whether the trial court correctly ruled that no genuine issue of material fact had been raised for trial. (United Security Insurance Co. v. Mason (1978), 59 Ill. App. 3d 982, 984, 376 N.E.2d 653.) Here, we believe that, notwithstanding the liberal interpretation to be accorded the term “accidental,” the record before the trial court at the time that summary judgment was entered was insufficient to determine as a matter of law that decedent’s death was accidental. The medical examiner’s report listed the manner of death as indeterminable and plaintiff’s own expert testified he was unable to form an opinion as to the cause of death. Plaintiff’s expert also ruled out as a cause of death the ankle fracture, which apparently was the only injury suffered by decedent. Accordingly, we are of the opinion that the evidence raised a genuine issue of fact for the jury as to whether decedent’s death was accidental within the scope of the policy’s coverage and, therefore, the order granting summary judgment for plaintiff is set aside.

We further reject defendant’s contention that plaintiff’s failure to provide an expert determination as to the medical cause of decedent’s death entitles it to summary judgment in its favor. The fact that an actual cause of death is medically undetermined does not preclude a jury from finding that, for purposes of the insurance contract, the death was accidental. If defendant wanted a medical opinion to serve as the basis of a claim for accidental death benefits, the policy in question could have been drafted to so provide. In an insurance contract, generally the insurer determines and drafts the policy provisions and any lack of clearness in the meaning of such contract is the insurer’s responsibility; that construction of the policy will be adopted which favors the insured and resolves any uncertainty in his favor. (State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 20, 230 N.E.2d 513.) Accordingly, we affirm the denial of defendant’s motion for summary judgment.

Defendant additionally alleges that the record contains a “number of strong indications” that decedent’s death was caused by disease and that “the possibility of suicide has not even been addressed in this lawsuit, much less ruled out.” With regard to this allegation, the law is well settled that it is defendant’s burden to plead and prove, as an affirmative defense, that decedent’s death falls within an exclusion of the insurance policy. (Kettlewell v. Prudential Insurance Co. of America (1954), 4 Ill. 2d 383, 385, 122 N.E.2d 817; Marsh v. Metropolitan Life Insurance Co. (1979), 70 Ill. App. 3d 790, 797, 388 N.E.2d 1121.) Here, defendant has failed to plead that this loss is within the scope of an exclusionary clause.

We are aware of case law indicating that where, as here, cross-motions for summary judgment are before the court, summary judgment for one side or another is proper. (Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576.) However, this court previously has concluded that the mere filing of cross-motions does not compel the reviewing court to grant summary judgment where, as here, a disputed material question of fact remains. (Nussbaum v. Williams (1980), 86 Ill. App. 3d 272, 277, 407 N.E.2d 1139; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 199, 380 N.E.2d 1040.) Hence, we are not precluded from determining that summary judgment for neither party is warranted by the record before us.

Finally, we affirm the denial of plaintiff’s motion for attorney fees, costs and interest. Section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767) permits an insured to recover reasonable attorney fees and costs in an action where there is an issue of liability on a policy if the court finds that there was an “unreasonable delay in settling a claim” and it appears that such delay is “vexatious and unreasonable.” A trial court’s determination on the issue of vexatious circumstances warranting an award of fees and costs will not be disturbed on review unless an abuse of discretion is demonstrated on the record. (Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 832, 433 N.E.2d 378.) In light of our holding above, that a question of fact exists as to defendant’s liability under the subject policy, we find no abuse of discretion by the trial judge in its denial of attorney fees and costs. Moreover, inasmuch as the granting of summary judgment for plaintiff is reversed, no claim for interest can be allowed.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part, reversed in part, and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part; remanded.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE BERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREA J. DUNGY, Defendant-Appellant.
    First District (2nd Division)
    No. 82—1139
    Opinion filed January 31, 1984.
    Rehearing denied March 27, 1984; April 3, 1984.

      Aldus S. Mitchell and Stephen Stern, both of Chicago, for appellant.

      Richard M, Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Maria Elena Gonzalez, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BERLIN

delivered the opinion of the court:

Andrea J. Dungy (defendant) appeals from her September 30, 1981, conviction by a Cook County circuit court jury of retail theft (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3(a)) and the trial court’s April 1, 1982, order denying her post-trial motions. Defendant was sentenced to six months’ conditional, nonreporting discharge.

On appeal, defendant contends that the trial court erred in: (1) violating her fifth and fourteenth amendment rights by denying her pretrial motions thereby allegedly allowing her to be twice subjected to prosecution for the same crime; (2) permitting the jury to separate during deliberations; (3) giving the “Prim Charge” jury instruction; and (4) denying her post-trial motions.

On October 21, 1977, defendant was arrested at Marshall Field’s (Field’s) State Street store in Chicago after being detained on suspicion of “shoplifting” by a store security guard, Thomas Seablom (Seablom). Seablom signed a complaint charging defendant with the theft of a purse. Defendant was accused of the theft of a purse valued less than $150. On November 14, 1977, this complaint was filed in Cook County circuit court. On June 7, 1979, because the original complaint apparently had been misplaced and was unavailable, the State was granted leave by the trial court to file a “substitute” complaint. On November 28, 1979, prior to the beginning of trial, the State was, over defendant’s objection, granted leave of court to amend the June 7, 1979, complaint changing the description of Field’s from “an Illinois corporation licensed to do business in the State of Illinois” to “a retail mercantile establishment” as prescribed by the retail theft statute (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3(a)). On November 28, 1979, defendant’s first trial ended in a mistrial due to her hospitalization. On January 21, 1980, following her second trial, defendant was found guilty of retail theft. On May 5, 1980, the trial court granted defendant’s motion for a new trial based on the possibility that “manufactured” evidence was used at trial. On January 14, 1981, defendant’s third trial ended with a hung jury and, upon defendant’s motion, a mistrial was declared.

On September 21, 1981, prior to the start of defendant’s fourth trial, she filed a motion to dismiss the charges against her. She contended that reprosecution would violate her rights to be free from “double jeopardy.” Defendant also argued that the original complaint of October 21, 1979, was “insufficient as a matter of law to sustain the charge of retail theft” and that the second complaint was improperly filed. On September 22, 1981, defendant’s motion was denied and defendant’s fourth trial began.

Thomas Seablom, a Field’s store security guard, testified to the following:

On October 21, 1977, Seablom was on duty in the fifth floor Wa bash area of Field’s Chicago State Street store when he observed defendant remove a purse from around the neck of a display mannequin, “take the price tag off the purse and drop it on the floor and insert the purse into a plastic bag.” Defendant then approached the “adjustment desk” and “requested a refund.” She was “unable” to obtain a refund and carrying her own purse and the plastic bag containing the display purse, she walked from the adjustment desk to a “down” escalator. Seablom got on the escalator behind defendant, identified himself as a Field’s security guard and asked her to accompany him to the second floor security office. Defendant did so. Defendant was taken to a small interrogation room and the plastic bag she was carrying was taken from her by Seablom. Seablom returned to the fifth floor and retrieved the price tag that defendant allegedly dropped on the floor. When he returned to the interrogation room, he searched the contents of defendant’s purse. In so doing he noted and recognized the name of defendant’s brother, Dennis Dungy, as that of an individual he had detained for shoplifting one year earlier. Seablom “assumed” that defendant and Dennis Dungy were related.

During cross-examination Seablom acknowledged that during a previous trial in this matter he testified that defendant told him that she was attempting to exchange the purse because of a defect.

Three other Field’s security guards, including two supervisors Charles Brown and Timothy J. Bogert, testified to the procedures utilized by Field’s when securing materials to be used as possible evidence in future prosecutions.

Samuel Toia, a Field’s employee, next testified to the following:

On October 21, 1977, while working in the fifth floor shoe department, he saw defendant “walk up to a display and take a handbag off a display.” Defendant placed the handbag in “a bag” and then walked around a coat display to the adjustment desk where defendant requested a refund. He contacted a floor manager, Susan Lawler, and told her what he had seen. He then “returned to [his] business.”

During cross-examination Samuel Toia acknowledged that only two days before her arrest he had unsuccessfully attempted to sell defendant a coat. Toia stated that although defendant “was dissatisfied [he] didn’t have her size,” he could not say that she had insulted him.

The State rested and defendant’s motion for a directed verdict was denied.

Dennis Dungy testified on his sister’s behalf to the following:

In 1976 he was detained by Thomas Seablom on suspicion of “shoplifting.” He was arrested on that charge after Seablom signed a complaint. The State’s objection to Dennis Dungy’s further testimony regarding that incident was sustained. Defense counsel, however, was permitted to make a “question-and-answer” offer of proof for the purpose of establishing Seablom’s alleged bias toward defendant and her family. Following the offer of proof, the court concluded that the testimony added nothing to the testimony previously elicited during the State’s case in chief and, as such, would not be presented to the jury. The court explained that “the testimony of [Dennis Dungy] does not indicate that the party who arrested him had any knowledge of who his sister was at the time the incident [October 21, 1977] occurred.”

Other defense witnesses included defendant’s mother, Mildred Dungy, who stated that defendant was “given the privilege to use” her Field’s charge card. Loretta Kinach-Boffa, a Field’s employee, testified that a sales receipt offered in evidence by defendant reflected that on October 18, 1977, three days before defendant’s arrest, Boffa had in fact sold an “Aigner” purse model number 4115 priced at $62. Jim Jensen, another Field’s employee, testified that the price tag allegedly retrieved by Seablom after observing defendant tear it from the display purse and drop it on the floor, contained a “style number” different than that of the purse defendant was accused of stealing. However, when asked if he ever found a wrong price tag attached to a particular “Aigner product,” Jensen responded: “Occasionally, very rarely, it does happen.”

Defendant testified to the following:

On October 21, 1977, she arrived in Chicago from Valparaiso, Indiana, where- she was enrolled as a third-year law student at Valparaiso University. Among the items defendant carried with her to Chicago was a “Carson, Pirie Scott draw string bag” containing a purse she purchased on October 18, 1977, at Field’s State Street store. Defendant “intended to return” this purse because it “had a defect on it.” Defendant arrived at Field’s about 4:30 p.m. She purchased a pair of shoes and then proceeded to the fifth floor Wabash side of the store and to the department where on October 18, 1977, she had purchased the first purse. Upon her arrival in that department, she noticed a purse which was “similar to the one [she] wanted.” She placed her packages on the floor next to the exchange desk, “reached up on the display shelf and took the bag off that was similar to the one [she] wished to exchange, and [she] set it on top of the - exchange desk.” Defendant spoke with a Field’s employee, “Mr. Kidd,” at the exchange desk. She asked if the man who had “overseen” the purchase of the purse on October 18, 1977, Mark Warning, was working. Mr. Kidd told defendant that Mark Warning was not working and any exchange she wished to make would have to be an “even exchange.” Kidd took the “Carson’s” bag from defendant, placed it on the exchange desk and told another Field’s employee that “it was an even exchange.” Officer Seablom then approached Mr. Kidd and asked “what the problem was.” Mr. Kidd responded that there was no problem. Defendant attempted to explain to Seablom that, although she left her receipt at home, “the bag was an even exchange.” Seablom told her “he wasn’t talking to her,” grabbed her by the arm and told her she had to come with him. At that time defendant’s packages were still on the floor near the exchange desk and the purse she wished to exchange, along with the purse she had removed from the display shelf, was still on the exchange desk. She managed to take her packages, including the bag containing the purse - she wished to exchange, with her as she accompanied Seablom. In the security office defendant was asked to sign an admission of guilt form and a release of liability of Field’s arising from a “false arrest.” Defendant refused to sign the forms and again explained that she had a receipt for the purse. She requested that the security guards “check the records” to establish that she had in fact purchased the purse. The security guard supervisor, Charles Brown, told her she would go to jail if she did not sign the documents. She refused and the Chicago police were called. She was placed under arrest and the complaint was filed.

Defendant then testified that the purse admitted at trial as People’s exhibit No. 1, which Seablom identified as the purse defendant removed from the display, was not the same purse that she brought to the Field’s State Street store in the plastic “Carson’s” bag.

Following defendant’s testimony, the defense rested.

The jury was instructed by the trial court and began deliberations. At approximately 7:30 p.m., after more than five hours of deliberation, the jury sent to the trial judge a note asking: “Is it possible to have a hung jury?” Before the jury returned to the courtroom, the court, in chambers, discussed with counsel the possibility of allowing the jury to adjourn to their homes for the night. Both defense counsel and prosecutor partook in this discussion without objection. Defense counsel suggested additional admonishments for the jury which the court in fact gave. The jury returned to the courtroom and was informed that it would be “discharged” for the evening with deliberations to resume the following morning. The court, without answering the jury’s question regarding the possibility of a hung jury, admonished the jury and allowed them to return to their homes. The following morning the trial court answered the jury’s question and told them that it was indeed possible to have a hung jury.

The jury reconvened their deliberations at 9 a.m. and continued for nearly eight hours until about 4:45 p.m. At that time the jury again sent a note to the court which read: “The jury is firm on their votes, no compromises, no total agreement, hung jury.”

The court informed counsel of his intent to deliver the so-called “Prim Instruction” to the jury. Following a brief argument and objection by defense counsel, the court delivered, orally, the following instruction:

“The verdict must represent the considered judgment of each juror. In order to return a verdict it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous; but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.”

At 4:50 p.m. the jury resumed its deliberations. At 5:30 p.m. the jury returned a verdict of guilty. Although the motion by defense counsel requesting that he be allowed personally to poll the jurors individually was denied, the jury was in fact polled by the court asking each juror if this was his or her own verdict. Each answered “yes.”

On October 29, 1981, defendant filed a post-trial motion which was subsequently amended. Among the specific allegations assigned as error was the contention (accompanied by affidavits of two jurors) that the jurors reached their verdict in part because of the failure of any Field’s employees working at the exchange desk on October 21, 1977, to testify. Defendant argued that this fact indicates that the jurors ignored the court’s instructions and improperly placed the burden upon defendant to prove her innocence.

On April 1, 1982, defendant’s post-trial motions were denied and she was sentenced to six months’ conditional, nonreporting discharge. Defendant appeals from her conviction and from the denial of her post-trial motions.

Initially, defendant contends that the trial court erred in allowing her to be twice prosecuted for the same crime.

On May 5, 1980, following defendant’s second trial and conviction, the court granted her motion for a new trial. The court stated that defendant’s motion was sustained “on the basis of the material deviation” between the testimony of officer Seablom and information contained in affidavits supplied to the court by defendant which alleged that certain photographic evidence offered at trial may have been “manufactured” by officer Seablom. The court stated that this material deviation

“might have effected [sic] this jury, might have effected [sic] the decision of the jury. And based on that ground alone I’m granting a motion for a new trial.”

Prior to defendant’s third and fourth trials, defendant moved for dismissal of the charge against her contending, as she does on appeal, that the “effect of the court’s [May 5, 1980] ruling was a determination that the court did not believe the evidence of the occurrence offered by the prosecutor to be sufficient to sustain the conviction.” As such, defendant argued that the trial court should have granted her motion for acquittal.

It is well established that an individual may not be twice prosecuted for the same offense. (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(a); Burks v. United States (1978), 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9, 98 S. Ct. 2141, 2147.) A subsequent prosecution is not, however, barred if the conviction is set aside “due to trial error” rather than “evidentiary insufficiency.” 437 U.S. 1, 15, 57 L. Ed. 2d 1, 12, 98 S. Ct. 2141, 2149.

We do not believe that the trial court’s May 5, 1980, order granting defendant a new trial was based upon its determination that the evidence was insufficient. Rather, we conclude that the court in this instance determined that defendant was convicted “through a judicial process which [was] defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence.” (437 U.S. 1, 15, 57 L. Ed. 2d 1, 12, 98 S. Ct. 2141, 2149.) Defendant was not in our opinion subjected twice to prosecution for the same crime.

Next, defendant contends that the trial court in allowing the jury to separate and adjourn to their homes during deliberations committed reversible error. Section 115 — 4(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(1)) provides:

“When the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others. Upon agreement between the State and defendant or his counsel the jury may seal and deliver its verdict to the clerk of the court, separate, and then return such verdict in open court at its next session.”

Defendant urges this court to follow the decision in People v. Ritzert (1974), 17 Ill. App. 3d 791, 308 N.E.2d 636, in which Ritzert was convicted of driving while intoxicated. After the jury had deliberated for over four hours and prior to their reaching a verdict, the trial court, in Ritzert, asked counsel whether a mistrial should be declared or if the jury should be allowed to go home for the night and resume deliberations the following morning. Defendant preferred that a mistrial be declared, and the prosecutor urged that the jury be sent home. (17 Ill. App. 3d 791, 791-92.) The trial court sent the jury home. The following morning the defendant objected to the procedure, but the trial court noted that no objection had been voiced prior to the jury’s release. The Second District of this court reversed defendant’s conviction and found that defendant’s failure to object to the separation was of no consequence and that under the statute, agreement to such a separation is permitted “only after the jury has concluded deliberations and sealed their verdict.” 17 Ill. App. 3d 791, 795.

More recent decisions of this court have interpreted section 115— 4(1) more liberally. In People v. Jackson (1982), 105 Ill. App. 3d 750, 758, 433 N.E.2d 1385, the court determined that, where defendant, through his attorney, agreed to allow the jury to go home for the evening and made no objection to the procedure the following morning, defendant had knowingly and intelligently waived the statutory requirement of section 115 — 4(1).

In the instant case, prior to the beginning of defendant’s fourth trial, the court indicated to counsel that if circumstances warranted, it would allow the jury to separate and retire to their homes during deliberations. Defense counsel made no objection at that time. When, in fact, the jury was deadlocked after deliberating for more than five hours, the court indicated its intent to allow the jury, after proper admonishment, to retire to their homes and to return the following morning. Not only did defense counsel fail to object to the court’s proposed action, but he participated in the procedure by suggesting additional cautions for the jury. No objection by defendant to the procedure was made on the following morning. The defendant offers no evidence to establish that she was in any way prejudiced by this procedure. See People v. Payton (1980), 84 Ill. App. 3d 181, 184, 405 N.E.2d 18.

Under these circumstances, it appears to us that defendant, through her counsel’s active participation in the procedure utilized by the court, waived objection to such procedure.

Defendant next asserts that the trial court erred in orally giving the so-called “Prim Instruction.”

The Illinois Supreme Court in People v. Prim (1972), 53 Ill. 2d 62, 75-76, 289 N.E.2d 601, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731, directed, courts of this State, when faced with deadlocked juries to instruct the jury as the trial court did in the instant case.

In Prim, after four hours of deliberation, the jury was brought into the courtroom and asked if they were hopelessly deadlocked. The foreman indicated that he thought there was a chance to reach a verdict. (53 Ill. 2d 62, 71.) The trial court then reminded the jury of its duty, in terms similar to that set out above, and the jury returned to deliberate. Fifteen minutes thereafter a verdict of guilty as charged was reached. (53 Ill. 2d 62, 72.) The court in Prim acknowledged the “coercive dangers” inherent in such an instruction given to a deadlocked jury. The court concluded, however, that such action was preferable to allowing the jury “to grope in such circumstances without some guidance from the court.” 53 Ill. 2d 62, 74.

It has been held that when assessing the coercive nature of an instruction given as directed in Prim, consideration should be accorded to the time when the instruction is given and to the length of time the jury deliberates after such instruction. (People v. Bonds (1980), 87 Ill. App. 3d 805, 813, 410 N.E.2d 228; People v. Allen (1977), 47 Ill. App. 3d 900, 907, 365 N.E.2d 460.) It is within the trial court’s discretion to permit further deliberation and to monitor the length of such deliberation even after a jury has indicated that it is “hopelessly deadlocked.” People v. Allen (1977), 47 Ill. App. 3d 900, 906.

The jury in this case deliberated for more than five hours and prior to reaching a verdict, retired for the night. The following day, after deliberating for an additional seven hours, the jury sent a note to the court which read: “The jury is firm on their votes, no compromises, no total agreement, hung jury.” The court indicated that whether there was in fact a “hung jury” was a determination to be made by the court itself and not the jury. The court then, over defense objection, gave the “Prim Instruction” to the jury. The jury continued deliberations for about 40 minutes and returned a verdict of guilty.

Our review of this record, being mindful of the protracted nature of this case, leads us to conclude that the trial court did not abuse its discretion when it gave to the jury the “Prim Instruction.”

Finally, defendant contends the. trial court erred in denying her post-trial motion which inter alia challenged the sufficiency of the original complaint.

It is well established in Illinois that where, as here, the sufficiency of a charge is challenged in a motion in arrest of judgment, the standard for determining whether the charging instrument is deficient is whether the elements of the offense charged are set forth as required by section 111 — 3(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 3(a); People v. Simmons (1982), 93 Ill. 2d 94, 99, 442 N.E.2d 891, quoting People v. Lutz (1978), 73 Ill. 2d 204, 211, 383 N.E.2d 171.) Section 111 — 3(a) requires that the charging instrument be in writing, stating the name of the offense and the relevant statutory provisions violated; setting forth the nature and elements of the offense and the date and county in which the offense occurred and naming the accused if known or a reasonably certain description. (People v. Testa (1983), 114 Ill. App. 3d 695, 698, 449 N.E.2d 164.) Generally, a charging instrument setting forth the offense in the language of the statute “ ‘is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.’ ” People v. Testa (1983), 114 Ill. App. 3d 695, 698, quoting People v. Dickerson (1975), 61 Ill. 2d 580, 582, 338 N.E.2d 184.

The original complaint in the instant case was signed and sworn to by the complainant, officer Seablom, on October 21, 1977. This complaint was filed on November 14, 1977. On May 1, 1979, a bill of particulars was filed by defendant. The original complaint, however, was misplaced. On June 7, 1979, the State was allowed by the trial court to present a “substitute” complaint to the court and to defense counsel. The trial court and defense counsel at that time “acknowledged” receipt of the “substitute” complaint.

Defendant asserts that: (1) the People “never requested or were granted leave to withdraw the first complaint and substitute the second complaint”; (2) that the second complaint filed more than one year and six months after the offense was untimely; (3) that the substitute complaint was “substantially” different from the first complaint; and (4) the first complaint was “insufficient as a matter of law to sustain a charge of retail theft.”

Our review of the record indicates that the People did request and were granted a substitution of complaints because the original was lost. The substitute, filed on June 7, 1979, with the authority of the court and the acknowledgment of defense counsel, was not a new charge or complaint but was intended as a substitute for the lost original. As such, it was not time-barred.

Defendant asserts that the original and substitute complaints are substantially different and that the original complaint was insufficient to charge the offense of retail theft.

Some time after the filing of the June 7, 1979, “substitute” complaint, and before defendant’s second trial, the original complaint which had been lost was found and has been made a part of the record on appeal. Comparison of the two complaints reveals that, whereas the original complaint cites the statutory section for “retail theft” and specifies the time and place of the alleged crime and the merchandise involved, it does not, as the substitute complaint does, indicate in the language of section 16A — 3(a) that the location of the crime was “a retail mercantile establishment” or that the merchandise was taken “without paying the full retail value ***.” Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3(a).

We note, however, that during oral argument before this court, defense counsel acknowledged that at all times during these proceedings, including the time during which the original complaint was misplaced, he had in his possession a copy of such complaint. It appears also that defendant was in possession of both the original and the substitute complaints prior to her second trial. It seems clear in our opinion that defendant was at all times apprised with reasonable certainty of the offense with which she was charged.

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

Affirmed.

STAMOS and DOWNING, JJ., concur.

      It appears that photographs of the display area described by officer Seablom as having been taken by him on a given day were in fact on film not manufactured, according to the film company, until a subsequent date.

      Dennis Dungy’s testimony reiterated the same facts elicited during the testimony of officer Seablom including the fact that Dennis was found not guilty by a jury of the charge of retail theft and brought a civil action against Marshall Field’s and officer Seablom. This suit was pending at the time of defendant's arrest and was settled out of court in the spring of 1978.

      At the outset of defendant’s testimony on September 22, 1981, she stated that she was, and had been since June 1981, a patient and resident of Ridgeway Psychiatric Hospital. Defendant’s emotional illness and hospitalization was the cause of the first mistrial in this matter. There has been no speculation by either party what, if any, effect this information had on the jury.

      Mr. Kidd did not testify nor were other employees of Field’s to whom defendant allegedly spoke on October 21, 1977, called to testify.


author: PRESIDING JUSTICE HARTMAN

text:
      In re D.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. D.S. et al., Respondents-Appellants).
    First District (2nd Division)
    Nos. 82—2311, 82—2312 cons.
    Opinion filed March 6, 1984.

      Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant D.S.
    P. Scott Neville, Jr., and Leroy W. Bannister, Jr., both of Chicago, for appellant S.K.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan and James J. Pink, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

This consolidated appeal involves two petitions for adjudication of wardship filed against minor-respondents, D.S. and S.K., for the offense of battery. Both respondents, D.S. in No. 82 — 2311 and S.K. in No. 82 — 2312, were 14 years old at the time the petitions were filed. After separate hearings, D.S. and S.K. were adjudged wards of the court and committed to the custody of the Department of Corrections. On appeal, S.K. contends that: (1) the circuit court’s failure to admonish her of the consequences of her admission and to determine if her admission was intelligently made violated her right to due process; and (2) the failure of her appointed counsel to file a motion to withdraw her admission and vacate the judgment constitutes ineffective assistance of counsel. D.S. asserts that: (1) her admission was involuntary; (2) her commitment to custody of the Department of Corrections was an abuse of discretion and violation of her right to equal protection; (3) the court failed to apply the proper standard in selecting the disposition, i.e., the preference for the dispositional alternative most nearly equivalent to a family home; and, (4) she was denied effective assistance of counsel during the commitment proceedings.

Nothing in the circuit court record in either case reveals a court admonition to the juveniles or their parents with respect to their rights at their first appearance in court, as mandated by section 1— 20(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701— 20(3)). At that hearing, both respondents and their respective mothers stood mute before the bench while an assistant public defender sought and obtained the court’s appointment as respondents’ counsel. Appointed counsel immediately thereafter informed the court that respondents had been instructed as to the consequences of their admissions and that they were waiving their rights to trial. The State and defense counsel then stipulated to facts alleged in the petition for adjudication of wardship. The circuit court accepted the admissions of the respondents; entered its findings of delinquency; and found that it would be in respondents’ and the community’s best interests that they be made wards of the court.

At dispositional hearings subsequently held, social service investigation reports were presented by the probation officer and considered by the circuit court. Thereafter, the findings of the circuit court were entered and the respondents were committed to custody of the Department of Corrections.

Following the foregoing determination, the circuit court outlined respondents’ appeal rights, advising them that before they could appeal they must file a written motion within 30 days after the entry of the dispositional orders asking to have the finding and adjudication set aside and for permission to withdraw their admissions. The court also advised respondents that their motions must set forth the reasons why the court should grant the request and that if they were indigent the court would appoint an attorney to aid in preparation of their motions and provide them with a free transcript. Respondents were also advised that an issue not raised in their petition to withdraw their admissions would not be considered on appeal.

The principal issue raised in this appeal is whether respondents’ admissions were voluntarily and intelligently made. Because of our determination that respondents’ due process rights were violated, the remaining issues need not be addressed.

The State maintains that due process was satisfied respecting respondents’ admissions because the record demonstrates that respondents were aware of the consequences of their admissions, understood their rights against self-incrimination and to confront their accusers, and affirmatively waived such rights. This contention is based upon representation to the court that defense counsel advised respondents of those rights and consequences at the hearing.

Juvenile proceedings are not criminal in nature; nevertheless, certain due process safeguards have been extended for the protection of juveniles in furtherance of fundamental fairness. (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428; In re S.R.H. (1983), 96 Ill. 2d 138, 144, 449 N.E.2d 129, 131, quoting In re Beasley (1977), 66 Ill. 2d 385, 390, 362 N.E.2d 1024, 1026, cert, denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734 (Beasley).) Juvenile proceedings must conform to such due process protections as will ensure that admissions are made intelligently and voluntarily. (In re Haggins (1977), 67 Ill. 2d 102, 364 N.E.2d 54; Beasley; In re F. D. (1980), 89 Ill. App. 3d 223, 411 N.E.2d 1200; In re Johnson (1981), 102 Ill. App. 3d 1005, 429 N.E.2d 1364.) The supreme court in Beasley, in reviewing the records involved in similar circumstances, stated that they must show an affirmative awareness of the consequences of an admission, observing (66 Ill. 2d 385, 397):

“In the three cases now before us, in addition to each minor being represented by counsel, the court addressed each one and ascertained that he knew that he had a right to deny allegations of the petition and require the State to prove the charges against him; to have a trial by the court and to confront the State’s witnesses. Each was also informed that as a result of the admission the court could commit the minor to a State institution. In addition to these admonishments common to all three proceedings each judge further interrogated the minor concerning his understanding of his rights. We believe that the record in each of these cases discloses that the minors understood the consequences of their admissions. These warnings and interrogations, together with the fact that each minor was represented by counsel who stated he had informed his client of his constitutional rights which could be waived by an admission, lead us to conclude that the admissions made in these cases were voluntary and intelligent in nature and comported in all respects with the requirements of due process.”

As demonstrated in Beasley, and observed in subsequent cases, the entire record may be searched to determine the state of a juvenile’s knowledge; however, such knowledge cannot be presumed merely because the record shows the juvenile had counsel. (In re Haggins (1977), 67 Ill. 2d 102, 106; In re Starks (1978), 60 Ill. App. 3d 934, 936, 377 N.E.2d 590, 592.) The due process rights of a juvenile do not rest merely on counsel’s representations that a juvenile understands the rights and consequences of his or her admission alone; the record must indicate that the court itself affirmatively determined the juvenile’s admission was voluntary and intelligently made.

The one-page record of the adjudicatory hearing in the present case reveals only the following colloquy:

“THE CLERK: Sheet 12 line 21, *** [S.K.], companions with
*** [D.S.], sheet 9 line 16.
*** [PUBLIC DEFENDER]: Your Honor, present before you is *** [D.S.] and her mother and *** [S.K.], and her mother. We would be asking for appointment on this.
THE COURT: You are appointed.
*** [PUBLIC DEFENDER]: At this time we would be asking leave to enter admission to the petition as alleged. I informed the minors of their right to trial and consequences of their admission today. We would be asking the Court to enter — order a supplemental social investigation.
THE COURT: All right. Factual basis.
*** [STATE’S ATTORNEY]: The State would stipulate to the facts as outlined in the petition.
*** [PUBLIC DEFENDER]: So stipulated your Honor.
THE COURT: All right. I will accept admission. There will be finding of delinquency. Further finding by the Court it would be in the best interest of the minor and community that each of them be made wards of the Court. Social will be 8/23/82, at 9:00 o’clock, Calendar 26.”

The foregoing indicates respondents appeared in court with their mothers, represented by counsel just appointed, who informed the court that she advised respondents of their rights. Respondents were asked no questions by counsel or court and in fact, it appears they stood before the court without uttering a single word.

This “silent record” does not demonstrate fulfillment of section 1 — 20(3) admonitions (In re Moore (1980), 87 Ill. App. 3d 1117, 409 N.E.2d 435) or of Beasley requirements prior to the acceptances of respondents’ admissions. (Boykin v. Alabama (1969), 395 U.S. 238, 242, 23 L. Ed. 2d 274, 279, 89 S. Ct. 1709, 1712; In re Beasley (1977), 66 Ill. 2d 385, 392.) Fundamental fairness under the circumstances presented requires more.

Accordingly, we reverse and vacate the adjudications of wardship and dispositions, and remand the D.S. petition (No. 82 — 2311) and the S.K. petition (No. 82 — 2312) to the circuit court to permit respondents to withdraw their admissions and direct the circuit court to proceed with new adjudication and dispositional hearings. Pursuant to our holding, we need not determine the competency of counsel at the previous hearings or the propriety of the dispositions effected.

Reversed, vacated and remanded with directions.

STAMOS and PERLIN, JJ., concur.

      Because of the similarity of the issues raised, we have consolidated these appeals sua sponte.