author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT HUNTINGTON, Defendant-Appellant.
    Fifth District
    No. 82—157
    Opinion filed June 10, 1983.

      Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, Robert Huntington, was convicted of robbery by the circuit court of Jackson County sitting without a jury. The only issue raised by the parties on appeal is whether the element of force was proved beyond a reasonable doubt.

James Sargent testified that he was driving north on Illinois Avenue in Carbondale, Illinois, when he saw “an elderly lady spinning around and *** her coat in the air.” Mr. Sargent saw defendant run down an alley, followed him, apprehended him, and detained him until police arrived.

Edna Parkin, who is 68 years of age and weighs 119 pounds, testified that she was walking north on the sidewalk of South Illinois Avenue in Carbondale, Illinois, when someone walked up behind her and grabbed her purse, which she carried on her left arm with the straps slightly above the wrist. The purse was not held down by her side nor was it wrapped around her arm or attached to her clothes. The purse, which consisted of two 12-inch leather handles with a gap of 16 inches, is approximately 18 inches wide and 12 inches high. The man was standing behind her when he grabbed the purse off her arm. According to Ms. Parkin, she was “just twirled around and it took me a few minutes to get my balance.” She did not fall down, but spun one-quarter of the way around. As he pulled the purse, it pulled her arm and body back; however, he did not actually put his hand on her arm. Defendant touched only the purse, which the victim felt leave her arm. Ms. Parkin did not struggle with the man nor did she resist him. The incident lasted approximately two seconds.

Section 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1) defines robbery as follows:

“A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.”

Thus, if no force or threat of imminent force is used in the taking, there is no robbery. (People v. Patton (1979), 76 Ill. 2d 45, 389 N.E.2d 1174.) The evidence indicates that there was no robbery through the threatening of the imminent use of force; however, the State maintains that the use of actual force was established by the victim’s testimony that she was spun one-quarter of the way around and lost her balance as a result of her purse being taken from her body.

The supreme court in Patton reviewed the cases addressing the issue of the degree of force necessary to constitute robbery. The Patton , court noted that most jurisdictions considering the issue have held I that a simple snatching or sudden taking of property from the person of another does not of itself involve sufficient force to constitute robbery; however, the act may be robbery where a struggle ensues, the victim is injured in the taking, or the property is so attached to the victim’s person or clothing as to create resistance to the taking. The supreme court observed that there is not sufficient force to constitute robbery when the snatching or taking of property from an unsuspecting person is without some actual injury to the person or when the act of taking is unaccompanied by any degree of force employed to overcome resistance to such taking. It has been held that there is sufficient violence where a lady’s ear was “torn completely through” in an endeavor to snatch her earring and where a steel watch chain around the victim’s neck was broken by the defendant. In the case at bar, there was no struggle, no injury to the victim, no resistance, no breaking of the purse straps, and no attachment to the victim or her clothing as to create resistance to the taking.

Where an article is taken without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand, the offense will be held to be theft from the person rather than robbery. (People v. Patton; People v. Gray (1980), 80 Ill. App. 3d 817, 400 N.E.2d 473.) We note that Ms. Parkin testified that she felt the purse come off her arm, felt the arm pulled back, and spun one-quarter of the way around. The element of force or intimidation must cause the surrender of the property, and we conclude that such force or intimidation has been established in the case at bar. Although where it is doubtful under the facts whether the accused is guilty of robbery, it is the duty of the court to resolve that doubt in favor of the lesser offense (People v. Patton), the evidence in the case at bar establishes that defendant tore the victim’s purse from her grasp with such force that her entire body was spun one-quarter of the way around and she lost her balance.

For the foregoing reasons, defendant’s conviction is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re ADOPTION OF GARY WAYNE HURLEY et al. (Alice Hurley, Petitioner-Appellant, v. Mary Pedigo et al., Respondents-Appellees.)
    Fifth District
    No. 82—214
    Opinion filed June 10, 1983.
    Jona Goldschmidt, of Carbondale, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Edward L. Choate, of Carterville, for other appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Alice Hurley, petitioned the circuit court of Williamson County for an order directing the circuit clerk to disclose to petitioner the juvenile records relating to her minor children, Gary Wayne Hurley and Dawn Renee Hurley. Petitioner appeals from the trial court’s order denying her prayer for relief.

On August 13, 1981, petitioner filed a “Motion For Disclosure of Adoption Records” and alleged that the adoption of her children was accomplished without due process of law. A hearing on this matter was held on September 1, 1981, with only petitioner and her attorney present at that time. Petitioner testified that she was the mother of Gary and Dawn Hurley and that she had last seen her children in 1978. Petitioner said she had a drug problem sometime around 1976 and that she had been hospitalized for this problem. Petitioner recalled signing a “voluntary placement order” in 1976 which she believed was for the purpose of legalizing a temporary custodial arrangement placing her children in a foster home until she could resolve her drug problem. Petitioner said that she attempted to contact her children by mail twice but was unsuccessful. Petitioner further testified that she received no notice regarding her children’s adoption and that she first learned of the adoption when her former employer at the Illinois Department of Children and Family Services had written her a letter informing her that the children had been adopted.

At the conclusion of petitioner’s testimony, her counsel moved to amend the pleading in order to request the trial court to issue an order directing disclosure of juvenile proceeding No. 73-J-31, entitled In the Interest of Gary and Dawn Hurley, and further requested that the trial court take judicial notice of this proceeding. Both motions were granted.

Petitioner filed an “Amended Motion for Disclosure of Court Records” and on March 18, 1982, another hearing was had. At this hearing, the adoptive parents of petitioner’s children appeared by counsel, the assistant public defender appeared as guardian ad litem for the children, and the assistant State’s Attorney appeared on behalf of the State. Petitioner’s testimony at this hearing was similar to her testimony at the previous hearing. In addition, petitioner stated, on cross-examination, that she had no memory of when her children had resided with her on the last occasion or whether she had been in court regarding juvenile proceeding No. 73-J-31. Petitioner explained that it was because of her drug problem that her memory was impaired.

Petitioner’s attorney argued that in light of petitioner’s loss of memory regarding notice of the juvenile proceeding, the juvenile file should be opened so that petitioner could determine if her parental rights were lawfully terminated. The State and the attorney for the children’s adoptive parents argued that under section 2 — 10(2) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 10(2)), petitioner was precluded from having the record unsealed unless the trial court could find “that unsealing the record will not adversely effect any party to the original proceeding or be contrary to the purposes and policy of the Juvenile Court Act.” Ill. Rev. Stat. 1981, ch. 37, par. 702-10(2).

On March 31, 1982, the trial court entered the following order from which petitioner appeals:

“THIS case having come on for hearing for determination as to whether or not a juvenile record, 73-J-31, should be opened for examination by Jona Goldschmidt, Attorney for Alice Hurley, and evidence having been heard, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:
1. That the petitioner has not shown that granting of disclosure will not adversely affect the parties to 73-J-31.
2. That the lack of memory on the petitioner’s part is her only real basis of complaint, and that no evidence of neglect of the Court or the Clerk of the Court in giving of notice has been shown nor has there been an allegation of neglect of the Court or the Clerk of the Court. A lack of memory is not enough to open the case.
3. The best interests of the children is the polestar of the Juvenile Court Act, and stability of the children’s lives is the primary concern and influence in the Court’s decision, and it is the Court’s decision that reopening this case would be disruptive to the children.
4. The ‘Latches-like Behavior’ [sic] of the petitioner, being that petitioner has waited for over three (3) years to bring this suit, and that an opening would be disruptive and disturbing to the children, is a further consideration.”

At the request of the State, the trial court applied the following statute in reaching its decision in the case at bar:

“The official court file and other files containing any memorandum or report and any transcript of testimony in proceedings under this Act shall be sealed 3 years after a minor’s last involvement with the court or upon the minor’s attaining the age of 21, whichever comes later, provided there are no petitions pending or the minor is not under a commitment order. This subsection (2) does not apply if the minor is adjudicated a delinquent based on an act which, if committed by an adult, would constitute murder, rape, deviate sexual assault, armed violence, voluntary manslaughter, armed robbery, or aggravated arson. A juvenile court record sealed under this Section shall not thereafter be unsealed without a court hearing with notice to all parties to the original proceeding. After such hearing the record shall remain sealed unless the court finds that unsealing the record will not adversely effect any party to the original proceeding or be contrary to the purposes and policy of the Juvenile Court Act.” (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 10(2).)

It is obvious from the language of the statute that a juvenile proceeding would not be sealed until the minors involved have attained the age of 21 years. While the record does not explicitly state the ages of the children in the instant case, the fact that they were represented by a guardian ad litem conclusively establishes that they were under 21 years of age. (See Ill. Rev. Stat. 1981, ch. 37, pars. 704 — 5, 702 — 3, 702 — 4, and 702 — 5.) This being the case, section 2 — 10(2) of the Juvenile Court Act does not require that the file be sealed; consequently, the trial court erroneously applied such statute as a basis for denying • petitioner’s motion for disclosure.

We next must consider whether the trial court erred in determining that petitioner’s “Latches-like Behavior” precluded her from obtaining access to such juvenile proceedings. We conclude that the court’s order was erroneous. While, as counsel for the adoptive parents points out on appeal, laches may bar a natural parent from obtaining a vacation of adoption orders (Rodriguez v. Koschny (1978), 57 Ill. App. 3d 355, 360-61, 373 N.E.2d 47, 51-52), the petitioner expressly has a right to examine pertinent juvenile court files. Section 2 — 10(1) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 10(1)) specifies that with certain exceptions not applicable to the case at bar, “the official court file and other files containing any memorandum or report and any transcript of testimony in proceedings under this [the Juvenile Court] Act shall be impounded and shall not be made available to the general public but may be inspected by representatives of agencies, associations and news media or other properly interested persons by general or special order of court. ***” Petitioner, who was the mother of the minors and who contends that she was improperly deprived of her parental rights, unquestionably is a “properly interested person” and should be given access to the impounded files. We conclude, therefore, that the trial court erred in denying petitioner access to the files in cause No. 73-J-31.

For the reasons stated above, the judgment of the circuit court of Williamson County is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.

HARRISON, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE HARRISON JUSTICE KASSERMAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHANNON GIBSON, Defendant-Appellant.
    Fifth District
    No. 82—412
    Opinion filed June 16, 1983.
    KASSERMAN, J., dissenting.
    Randy E. Blue and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Barbara Adams, State’s Attorney, of Hillsboro (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The defendant, Shannon Gibson, pleaded guilty to burglary and was sentenced to three years’ imprisonment on April 1, 1982. On April 2, 1982, the written judgment order was filed. On May 4, 1982, a pro se letter from the defendant was filed by the clerk of the circuit court. The State filed a motion to dismiss on the basis that the letter did not constitute a motion to withdraw the plea of guilty as contemplated by Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)). After a hearing, the court granted the motion to dismiss. The only issue on appeal is whether the letter was timely filed and whether it complies with Supreme Court Rule 604(d). We affirm.

The letter from defendant stated:

“Dear Sir,
I wish to appeal my case, on the grounds of inadequate defence [sic] by my attorney. I was psyeologicly [sic] coherced [sic] into ph ading guilty. I would also like to have the court appoint me
another attorney. Thank you.
Sincerly [sic] yours
Shannon Gibson
case # 81-CF-94.”

At the hearing, the defendant testified that he mailed the letter on April 27, 1982. The court stated that during the week prior to May 4, 1982, he was in another county and that he had no doubt that the letter had been in his basket for a week. As soon as he found the letter, he opened it and had it filed. Assuming, arguendo, that the letter was timely, the appeal must be dismissed because the letter does not constitute a motion to -withdraw a plea of guilty as contemplated by Supreme Court Rule 604(d). Defendant’s letter does not qualify as a motion to vacate the plea where factual allegations not appearing in the record are not supported by an affidavit and the letter does not request withdrawal of the plea. The letter does not request any action other than in matters relative to the appeal. Therefore, the court properly dismissed the motion. People v. Frey (1977), 67 Ill. 2d 77, 83, 364 N.E.2d 46.

Defendant, relying on People v. Parks (1977), 54 Ill. App. 3d 967, 369 N.E.2d 1373, contends that the court may treat a letter as a motion to withdraw a plea of guilty. However, in Parks, defendant’s letter which was timely filed sought unequivocally to withdraw the negotiated plea of guilty. In the case at bar, defendant’s letter does not unequivocally seek to withdraw the negotiated plea of guilty.

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

Affirmed.

EARNS, J., concurs.

JUSTICE KASSERMAN,

dissenting:

I am unable to agree with the decision of the majority; therefore, I respectfully dissent.

The record indicates that defendant testified that on April 27, 1982, he mailed the undated letter referred to by the majority. Although this letter was not filed by the circuit clerk until May 4, 1982, the court stated that it had no doubt that the letter had been in its mail basket for a week prior to its being filed. Thus, had defendant’s letter received even routine treatment, it would have been filed in ample time for it to constitute a timely motion under Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)).

The majority has determined that, assuming that defendant’s letter was timely, it would not constitute a motion for leave to withdraw the plea of guilty and to vacate the judgment of guilty, required by Supreme Court Rule 604(d) in order to perfect an appeal. This conclusion, however, fails to take into consideration the fact that Supreme Court Rule 605(b) (87 Ill. 2d R. 605(b)) makes provision for the admonitions to be given a defendant upon a plea of guilty. Rule 605(b) requires that when judgment is entered upon a plea of guilty, “at the time of imposing sentence” the court shall advise the defendant substantially as follows:

“(1) That he has a right to appeal;
(2) That prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;
* * *
(5) That if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and
(6) That in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate *** shall be deemed waived.” 87 Ill. 2d R. 605(b).

In the case at bar, after defendant was given the admonitions under Supreme Court Rule 605(b), he did everything possible to avail himself of the right to the appointment of counsel “to assist him with the preparation of the motions.” First, he applied to the trial judge, not the clerk of the court, requesting the appointment of counsel, a perfectly reasonable response to the court’s admonition under Supreme Court Rule 605(b)(2) that such application must be filed “in the trial court.” Second, he specifically requested the trial court to “appoint [him] another attorney.”

While Supreme Court Rule 604(d) is frequently cited as justification for the dismissal of an appeal, it must be borne in mind that the defendant in a criminal proceeding is not informed of the provisions of Rule 604(d). As a consequence, Illinois courts have consistently held that the failure of a trial court to give a defendant the admonitions required by Supreme Court Rule 605(b) prevents a dismissal of his appeal for failure to comply with the provisions of Supreme Court Rule 604(d). (People v. Ryant (1976), 41 Ill. App. 3d 273, 274, 354 N.E.2d 395, 396.) It is my conclusion, therefore, that when defendant received the Rule 605(b) admonitions and sought to obtain the appointment of counsel, it necessarily follows that his failure to file the motion to vacate his plea and to vacate the judgment of guilty within 30 days was attributable to the trial court’s failure to provide counsel for defendant “to assist him in the preparation of the motions.”

When the predicament of an accused standing in the position of the defendant in the instant case is considered, it is impossible to expect such accused to do anything more than this defendant did. As a matter of fact, defendant did precisely what the court instructed him that he must do in order to appeal. He wrote to “the trial court” and requested the appointment of counsel, as the court had advised him would be done, on request, “to assist him with the preparation of the motions.”

The dilemma of an accused in -a situation such as that facing the defendant in the instant appeal, as well as defendants similarly situated, is the result of the defendant being left to pursue his appellate remedies on his own. He has been sentenced by the trial court, who gives him the Rule 605(b) admonitions and is gone. Defense counsel, often appointed by the court, wishes defendant good luck and vanishes. The defendant is returned to jail; and, since he is no longer represented by counsel, is left to his own devices in obtaining appointed counsel and perfecting his appeal. It is unconscionable under the circumstances to impute a waiver of the right to file a motion to vacate the judgment of guilty and for leave to withdraw plea of guilty to a defendant who by the only means available to him expressly has requested the appointment of counsel to assist him. See People v. Moore (1976), 45 Ill. App. 3d 570, 571, 359 N.E.2d 1065, 1066.

Parenthetically, the issue presented by the instant appeal appears to occur with sufficient frequency to suggest that consideration be given to requiring, by the amendment of Supreme Court Rule 604(d) or otherwise, that the defendant’s trial attorney, as his final act, prepare and file on behalf of the defendant the documents necessary to preserve the right to appeal under Rule 604(d).

The majority in the instant appeal would distinguish People v. Parks (1977), 54 Ill. App. 3d 967, 369 N.E.2d 1373, on the basis that the defendant there “sought unequivocally to withdraw the negotiated plea of guilty.” However, the court in Parks, after referring to a letter written by defendant, observed that the “court properly treated this letter as a motion to vacate and appointed counsel as contemplated by Rule 604(d).” (54 Ill. App. 3d 967, 968, 369 N.E.2d 1373, 1374.) It is noteworthy that although Parks unequivocally had sought to withdraw his plea of guilty, he did not file a motion to vacate the judgment of guilty or for the appointment of counsel.

It is my conclusion, therefore, that defendant’s letter in the case at bar should be considered as a timely application for the appointment of counsel to assist him in the preparation of his motions for leave to withdraw his plea of guilty and to vacate the judgment of guilty. For that reason, I would reverse the judgment of the trial court.


author: JUSTICE KARNS

text:
    JOFFRE M. FIELDS, Plaintiff-Appellant, v. FRANKLIN LIFE INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 82—302
    Opinion filed June 21, 1983.
    Rehearing denied July 20, 1983.

      Feirich, Schoen, Mager, Green and Associates, of Carbondale, for appellant.
    Charles E. Schmidt, of Mitchell, Brandon & Schmidt, of Carbondale, and James Dillard, of Franklin Life Insurance Co., of Springfield, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Joffre M. Fields brought this action against Franklin Life Insurance Company as beneficiary of her deceased husband, Charles S. Fields. After a jury trial in the circuit court of Jackson County, judgment was entered on the verdict in favor of defendant.

The question before us on appeal is whether the issuance of a conditional premium receipt by the insurance company, upon payment of the initial premiums by the deceased, bound the company to pay the death benefit where death occurred prior to the issuance of the policy of insurance. We hold that under the terms of the conditional premium receipt, and the facts here presented, no policy of insurance was in effect.

The deceased made two applications for insurance, paid the initial premium and was issued two conditional premium receipts. The receipts provided:

“CAUTION: No interim or temporary insurance coverage is afforded under the provisions of this receipt and no insurance will become effective prior to policy delivery and acceptance unless each and every condition specified in paragraph ‘FIRST’ on the reverse side is fulfilled exactly. No agent of the company and no broker is authorized to alter or waive any of these conditions.”

The conditions stated in paragraph “FIRST” on the reverse side of the receipt were as follows:

“FIRST. Conditions Under Which Insurance May Become Effective Prior to Policy Delivery and Acceptance. If each and every one of the following conditions have been fulfilled EXACTLY — (a) full initial premium must be paid according to the method of premium payment selected in the application for the amount of insurance applied for; (b) all medical examinations, tests, X-rays and electrocardiograms required by the Company’s underwriting rules and standards must be completed within 60 days from the date of the application Part 1; (c) the Proposed Insured, (and the Applicant if Payor Benefits are applied for) must be on the Effective Date, as defined below, a risk acceptable under the Company’s underwriting rules, limits and standards for a policy EXACTLY as applied for without modification and at the rate of premium paid — then insurance as provided by the terms and conditions of the policy applied for and in use by the Company on the Effective Date but for an amount not exceeding that specified in paragraph ‘SECOND’ will become effective as of the Effective Date. ‘Effective Date’ as used herein means the latest of: (a) the date of application Part 1, or (b) the date of completion of all required medical examinations, tests, X-rays and electrocardiograms required by the Company’s underwriting rules and standards, or (c) the date, if any, requested in the application.”

On April 4, 1978, the day after the deceased submitted a second application for life insurance, Fields sought medical attention from Dr. Hugh D. McGowan, the doctor to whom Fields had brought his son for medical care. McGowan had noticed Fields’ weight loss over an 18-month period prior to his death and had advised Fields on at least two occasions to get medical attention. Fields’ history of weight loss and a goiter visible to the naked eye were significant factors in Dr. McGowan’s diagnosis that Fields suffered from hyperthyroidism. Fields was referred to Dr. G. Ray Ridings who treated Fields with radioactive iodine on May 18, 1978. On May 20, 1978, Fields became very ill, was rushed to a hospital and died that same day. The company attempted to arrange a physical examination of Fields on three occasions; no examination was made prior to his death.

No policy of life insurance was ever issued by Franklin Life on the applications submitted by Charles Fields. By letter dated May 26, 1978, the company informed the plaintiff that the applications of her husband were incomplete. The company denied liability under the terms of the conditional premium receipts and tendered return of the premium payments in the amount of $71.05, which plaintiff rejected.

The company denied that insurance coverage was in effect because the applicant had failed to submit to a medical examination within 60 days from the date of application as required by the conditional premium receipt and by the company’s underwriting rules and standards. The company further alleged that the applicant had made a material misrepresentation of fact on the application for life insurance and that the applicant was not an acceptable risk under the company’s underwriting rules and standards at any time from the date of application.

On appeal, plaintiff argues that the undisputed facts establish that an interim, or temporary, contract of insurance was in effect at the time of death, and prior to the issuance of a policy of insurance or formal rejection of the application for insurance. The plaintiff also assigns as error the refusal of the court to give certain preemptory instructions containing abstract propositions of law. Plaintiff’s tendered instruction No. 27, as an example, told the jury that a temporary contract of insurance was in existence on issuance of the conditional premium receipt if the applicant was not notified by the receipt that he must have a medical examination and if the company failed to establish that the deceased was not an insurable risk at the time of submission of the application. However, plaintiff’s lengthy issues instructions put in issue the same matter for the jury’s determination.

In short, should we determine that the terms of the conditional premium receipt were ambiguous so that a factual question was properly left for the jury’s determination, all possible factual questions were resolved in the defendant’s favor. Thus, under plaintiff’s issues instruction, the jury determined that the deceased was not an insurable risk; that the deceased failed to submit to a medical examination which was required under the terms of the receipt; that the deceased made a material misrepresentation of fact in the application for insurance; and that the insurance agent did advise the deceased that a medical examination was required. We need not consider whether this issue was properly submitted to the jury where the language of the receipt was clear that the agent could not waive any of the conditions precedent to coverage. See Wallace v. Prudential Insurance Co. of America (1973), 12 Ill. App. 3d 623, 299 N.E.2d 344.

The plaintiff submitted for the jury’s determination all conceivable factual issues which she perceived to entitle her to recover. Whatever nuances may be gleaned from these subsidiary factual controversies, they have all been resolved in defendant’s favor. The plaintiff does not argue on appeal that the verdict of the jury was contrary to the manifest weight of the evidence.

As we have suggested, however, we perceive no ambiguity in the terms of the conditional premium receipt. The meaning and effect of an unambiguous, written instrument is a question of law for the court’s determination where there is no ambiguity created by the language used, or where some disputed extrinsic facts, such as peculiar meaning that the parties may attach to the words, create an ambiguity in the meaning of the instrument. (Ahlvers v. Terminal R.R. Association (1975), 31 Ill. App. 3d 166, 334 N.E.2d 329; Sherbrooke Homes, Ltd. v. Krawczyk (1980), 82 Ill. App. 3d 990, 403 N.E.2d 622; Ridenhour v. Mollman Publishing Co. (1978), 66 Ill. App. 3d 1049, 383 N.E.2d 803.) But as we stated in Ahlvers, although it was improper to allow the jury to determine the meaning and effect of this conditional premium receipt, where it was done at the request of the plaintiff, she can hardly complain that the jury resolved the issue of its meaning against her.

Plaintiff argues that the trial court erred in not directing a verdict in her favor because it was the “intention” of the parties that the deceased would have interim insurance during the 60 days while the company determined if he was an insurable risk. The corporate defendant’s intention, however, can only be determined from the language of the receipt itself. Furthermore, whatever possible relevance the “intention” of the parties might have was resolved in favor of the defendant by the verdict of the jury, as was any question of the defendant’s negligence in failing to determine the deceased’s insurability within a reasonable period after he submitted the application for insurance. In any event, under the clear wording of the receipt, the defendant could have no responsibility to determine Field’s insurability prior to the time he submitted to a medical examination. Cf. Rivota v. Fidelity & Guarantee Life Insurance Co. (7th Cir. 1974), 497 F.2d 1225.

Plaintiff further argues that the trial court erred in failing to instruct the jury that a temporary contract of insurance was in effect if the deceased were an insurable risk when the receipt was issued, relying on the holding of Armstrong v. United Insurance Co. of America (1981), 98 Ill. App. 3d 1132, 424 N.E.2d 1216.

Plaintiff’s reliance on Armstrong is misplaced. There, the existence of a temporary contract of insurance was conditional only upon the insurability of the applicant, and, according to the wording of the receipt, only dependent upon the arbitrary approval of the application by the company without any requirement of a medical examination. The applicant had not been told that a medical examination was required, nor was it required by the terms of the receipt. Furthermore, in finding interim coverage, the court relied on the agent’s representation of immediate coverage. The receipt given contained no provision limiting the agency’s authority to explain its meaning or to waive any condition precedent to coverage. The court further found “hopeless ambiguities” in the application and receipt.

Conditional receipts differ greatly in their wording and conditions. (See Reynolds v. Guarantee Reserve Life Ins. Co. (1976), 44 Ill. App. 3d 764, 358 N.E.2d 940; 1 Couch on Insurance secs. 14:39-14:43 (2d ed. 1959).) The language of the receipt issued here is clear and unambiguous; the applicant must have completed the required medical examination before temporary insurance could be in effect regardless of the company’s later determination of the applicant’s insurability. There is no language in the receipt reasonably inducing any belief of coverage or reliance on interim insurance prior to the time of compliance with the express conditions therein set out.

The receipt given here is like the one before the court in Grandpre v. Northwestern National Life Insurance Co. (S.D. 1977), 261 N.W.2d 804, 807. There the court said that the prominent warning, similar to the one contained in the receipt given Fields, “would alert any ordinary person to understand what had to be completed before the temporary or interim insurance would be effective.” See also Wallace v. Prudential Insurance Co. of America (1973), 12 Ill. App. 3d 623, 299 N.E.2d 344.

The final issue we need not address; it related only to the amount of insurance, and the jury and this court have resolved the question of liability in defendant’s favor.

The judgment of the circuit court of Jackson County is therefore affirmed.

Affirmed.

HARRISON, P.J., and WELCH, J., concur.


author: PRESIDING JUSTICE HARRISON JUSTICE JONES,

text:
    JOHN YOUNG et al., Plaintiffs-Appellants, v. THE CITY OF BELLEVILLE et al., Defendants-Appellees.
    Fifth District
    No. 82—349
    Opinion filed June 10, 1983.
    Rehearing denied July 11, 1983.
    JONES, J., specially concurring.
    Dunham, Boman & Leskera, of East St. Louis (Eric C. Young, of counsel), for appellants.
    Robert J. Sprague, of Sprague, Sprague & Ysursa, of Belleville, for appellee City of Belleville.
    Weihl & Millard, Ltd., of Belleville (Donald E. Weihl, of counsel), for other appellees.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

This is an appeal from an order granting defendants’ motion to dismiss plaintiffs’ second amended complaint. Plaintiffs are citizens who own or occupy real estate adjacent to or in the immediate vicinity of property for which a zoning variance was sought. Defendants, Thomas E. Wobbe, Ronald Noble, Raymond Geller and Clifford F. Flood, d/b/a Carriage House Place Associates, planned to build 30 apartments in a building located at 115 East “B” Street, Belleville, Illinois. They sought a variance on the number of parking spaces needed to accommodate the building, hoping to reduce the requirement from 50 to 18. The building was being designed as a subsidized apartment complex for elderly patrons who would not need as large a parking facility as the public generally.

When defendants first filed their application for variance, the zoning board of appeals recommended to the Belleville city council that the application be granted. The council, however, denied the application. The defendants filed a second variance application with the board a short time later and, after receiving another favorable recommendation from the board, the city council granted it. (Ordinance 3817.) Plaintiffs thereafter filed suit challenging the council’s action. Defendants, the city of Belleville and Carriage House, moved to dismiss. The motion was granted and plaintiffs appeal.

Because the trial court did not specify on what grounds it was basing its dismissal, the plaintiffs have addressed each of the points contained in defendants’ motion. Thus, on appeal, they assert first that they did have standing to attack the variance. Second, they challenge the defendants’ reapplication for variance as procedurally improper. Finally, they maintain that the present action was not rendered moot by the powers of the city of Belleville to exempt certain properties from the zoning ordinance or to revoke the zoning ordinance in its entirety.

We find it unnecessary to address the issues raised in plaintiffs’ brief, however, because of the argument made by defendants on appeal that the circuit court had no subject matter jurisdiction. The essence of defendants’ position is that plaintiffs improperly sought review of the council’s actions via the Administrative Review Act and various other statutes and ordinances which deal with review of agency decisions. Defendants maintain that plaintiffs, in effect, view the board and the council as administrative agencies and treat the entire matter as if it were governed by principles of administrative law. They point out that decisions made by a city council are legislative, not administrative, in nature. (Erlinger v. City Council (1975), 28 Ill. App. 3d 324, 325, 328 N.E.2d 663.) A legislative decision such as the enactment of ordinance 3817 is reviewable through a declaratory judgment proceeding challenging the validity of the ordinance. (Fitzpatrick v. City of Springfield (1973), 10 Ill. App. 3d 317, 320, 293 N.E.2d 712.) A complaint seeking to have an ordinance declared invalid must allege that it is “arbitrary, capricious and unreasonable” and bears “no substantial relation to the public health, safety or general welfare” (Jeisy v. City of Taylorville (1980), 81 Ill. App. 3d 442, 449, 401 N.E.2d 627), or in some other way violates the plaintiffs’ constitutional rights. (See Woolfolk v. Board of Fire & Police Commissioners (1979), 79 Ill. App. 3d 27, 29, 398 N.E.2d 226.) Defendants note that the complaint here failed to allege the necessary constitutionally based violations. Therefore, because the complaint sought administrative relief and because it failed to allege any constitutional infringements, defendants argue that it did not vest the circuit court with subject matter jurisdiction. See Flowers v. Village of Indian Creek (1974), 22 Ill. App. 3d 6, 316 N.E.2d 552.

Although plaintiffs did title their original complaint “Complaint For Declaratory Judgment,” the relief they sought therein amounted to administrative relief. In count I of their second amended complaint, they cited to section 11 — 13—12 of the Illinois Municipal Code. That section sets forth the procedure for appealing to the board of appeals. (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 13—12.) It provides for administrative review of the board’s decision in those situations in which the decision is an administrative one, both final and appealable. (See Traders Development Corp. v. Zoning Board of Appeals (1959), 20 Ill. App. 2d 383, 388-89, 156 N.E.2d 274.) But this provision has no application where the board’s decision was advisory only and where the real challenge is being directed at the validity of legislative actions taken by the council. Administrative statutes and case law have no bearing in a suit to review “the exercise of an act of discretion by a legislative body.” Erlinger v. City Council (1975), 28 Ill. App. 3d 324, 325.

Zoning is a legislative function, “subject to court review only for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare.” (Thompson v. Cook County Zoning Board of Appeals (1981), 96 Ill. App. 3d 561, 575-76, 421 N.E.2d 285.) Although count I did challenge the validity of ordinance 3817, it contained no allegations that the city council’s acts were “unconstitutional” or “arbitrary, capricious, and unreasonable,” or that they bore “no substantial relation to the public health, safety, or general welfare.” Instead, in the prayer for relief, plaintiffs stated that their ground for declaring the ordinance invalid was that “the city had no authority to grant the variance after it had denied the variance on a previous occasion.” Thus, they sought a declaration that the defendants did not follow the proper procedures set forth for appeal of an administrative decision, not a determination that the ordinance was invalid on constitutional grounds. Count II of the second amended complaint was identically flawed.

We note, parenthetically, that count III of plaintiffs’ original complaint did contain an allegation of “unreasonable and arbitrary” and “unconstitutional,” but this count was voluntarily dismissed on plaintiffs’ own motion. Similarly, in the prayer for relief of count II of the original complaint, plaintiffs had requested a determination that the ordinance was unconstitutional. However, as noted previously, neither the original count II nor subsequent amendments to count II contained the necessary allegations of constitutional violations.

Those allegations which remained in the second amended complaint were insufficient to invoke the jurisdiction of the trial court. Consequently, the complaint was properly dismissed at the pleading stage.

The order of the circuit court of St. Clair County is hereby affirmed.

Affirmed.

WELCH, J., concurs.

JUSTICE JONES,

specially concurring:

The majority has left unsaid the fact that article VI, section 9, of the Illinois Constitution of 1970 confers original jurisdiction of all justicable matters upon circuit courts. Accordingly, it is incorrect to say that the circuit court of St. Clair County did not have jurisdiction to consider the validity of the ordinance in question. Patently, it does have such jurisdiction. Since the amended complaint before the court was couched in terms of review of an administrative decision, it was insufficient to invoke the jurisdiction of the circuit court to declare the ordinance invalid upon constitutional grounds. The matter of the constitutionality of the ordinance was not placed before the circuit court. It was this deficiency in pleading that rendered the second amended complaint insufficient to invoke the jurisdiction of the circuit court to declare the ordinance invalid on constitutional grounds.


author: JUSTICE JONES

text:
    RALPH J. MENDELSOHN, Plaintiff-Appellant, v. CNA INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 82—669
    Opinion filed June 10, 1983.
    Groshong & Moorman, of East Alton, for appellant.
    Wagner, Bertrand, Bauman & Schmieder, of Belleville (Bernard H. Bertrand, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The issue raised on appeal calls for a determination of whether an attorney’s conduct of a lawsuit pro se amounts to the practice of law for purposes of an insurer’s liability under a policy issued for protection against the attorney’s “professional, office premises and personal injury liability.”

The plaintiff, Ralph J. Mendelsohn, brought an action for declaratory judgment against the defendant, CNA Insurance Company, Inc., seeking a determination of his rights as an insured under a policy issued by the defendant and described above. The insured, an attorney, sought declaratory judgment that coverage was available to him and that the insurer had a duty to defend him in an action brought against him by his former wife, Dona Mendelsohn. The trial court granted the defendant insurer’s motion to dismiss the complaint for declaratory judgment and subsequently denied the plaintiff’s motion to reconsider the ruling. We dismissed an earlier appeal from a non-final order dismissing the complaint. Following dismissal of the appeal the trial court found that the insured had elected to stand on his complaint and ordered the complaint dismissed with prejudice pursuant to the defendant’s motion for dismissal. Plaintiff appealed stating the single issue as “[wjhether the trial court erred in allowing the Defendant’s Motion to Dismiss the Complaint for Declaratory Judgment.”

The suit brought by plaintiff against his insurer arose out of a suit brought in 1980 by Dona Mendelsohn against Ralph Mendelsohn and three other attorneys. The suit brought by Dona Mendelsohn had, in turn, arisen out of a suit for divorce brought in 1977 by Ralph Mendelsohn against Dona Mendelsohn. The attorneys named as defendants in the suit brought by Dona Mendelsohn include, in addition to Ralph Mendelsohn, David Grounds, who represented Dona Mendelsohn in the suit brought against her for divorce, L. Thomas Lakin, who appears to be an associate of David Grounds, and Luther Simmons, who is described in Dona Mendelsohn’s complaint as “the attorney representing Ralph J. Mendelsohn” in the suit against her for divorce. In the suit brought by her against Ralph Mendelsohn she alleges that he “knew that the plaintiff was suffering from mental and physical exhaustion and was of a peculiar or special sensitivity toward mental anguish and emotional distress” and that he knew or should have known that his conduct would cause her great mental anguish and emotional distress but, disregarding such knowledge, he “intentionally or in conscious disregard” of that risk committed certain acts and omissions with reference to the suit for divorce.

In the complaint for declaratory judgment Mendelsohn, the insured, made no allegations as to whether he was represented by counsel in the suit for divorce or whether he conducted part or all of that suit himself. In its motion to dismiss the complaint, the insurer attached and made a part of its motion copies of the complaint and certain petitions, motions and orders that had been filed in the suit for divorce in order to show that Luther Simmons represented Ralph Mendelsohn in that suit. These items expressly refer to Luther Simmons as Ralph Mendelsohn’s attorney, and the complaint, like the petitions and motions, bears Simmons’ signature as Ralph Mendelsohn’s attorney. The court in its order granting the insurer’s motion to dismiss the complaint stated that the insured “was represented by counsel,” namely, Luther Simmons, in the suit for divorce. However, attached to and made a part of the insured’s motion to reconsider the order of dismissal of the complaint for declaratory judgment is the affidavit of Diana Stolze, Luther Simmons’ legal secretary. Of the items attached to the insurer’s motion to dismiss she states that they were not prepared by Luther Simmons but were prepared by Ralph Mendelsohn. In his brief appellant placed considerable importance upon the fact that in a letter to the insured an attorney of the insurer stated, “The suit filed by Dona Mendelsohn, in Madison County, II. Circuit Court, charges you with negligence arising from a case in which you were plaintiff in the Petition for divorce and represented your own interests.” In view of the disposition we make and the result we reach in this case, the factual dispute as to whether Ralph Mendelsohn was represented by counsel in the suit for divorce is of no moment.

The insurance policy issued by the defendant provides in part:

“1. COVERAGE
Coverage A — Professional Liability
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages arising from the performance of professional services for others in the insured’s capacity as a lawyer because of an error, negligent omission or negligent act of the insured or of any other person or organization for whose error, negligent omission or negligent act the insured is legally responsible. Coverage B — Office Premises and Personal Injury Liability To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages:
(a) because of bodily injury or property damage caused by an occurrence arising out of the ownership, maintenance or use of
(1) the insured premises as a lawyer’s office, including operations necessary or incidental thereto, and
(2) an employee owned automobile, or
(b) because of personal injury caused by an occurrence and arising out of the professional and business activities of the insured.” (Emphasis added.)

In the complaint for declaratory judgment the insured alleges that the lawsuit brought by Dona Mendelsohn against him “arises out of an alleged personal injury caused by an occurrence and arising out of a professional and business activity of the insured, namely the Plaintiff, Ralph J. Mendelsohn.” Exhibit B of the complaint for declaratory judgment consists of four pages of the policy in question, and although “[occurrence” is defined on one of the four pages, part of the definition is obliterated in the copy of that page included in the record on appeal. Because of the partial obliteration we have not considered either the definition itself or the arguments advanced by the parties with reference to it.

Appellant does not suggest that his situation falls within the ambit of Coverages A or B(a), and, indeed, it does not do so. Therefore, appellant can prevail in the action for declaratory judgment only if his situation falls within the ambit of Coverage B(b). Appellant states in his brief that “[i]t is obvious by the pleadings” in the case brought by Dona Mendelsohn that Ralph Mendelsohn “was being sued as an attorney.” “[Bjeing sued as an attorney,” however, is not the test for imposition of liability upon the instant insurer. Appellant is silent on the implicit issue of whether an attorney’s conduct of all or part of a lawsuit in which he is plaintiff may be deemed to be among his “professional and business activities.” We agree with the insurer that it may not, assuming the phrase “professional and business activities” refers to the practice of law.

That the practice of law involves service to another seems axiomatic. Although not addressing that precise question, EC 3 — 5 of the Code of Professional Responsibility (Code of Professional Responsibility-Annotated (Illinois) (Ill. Inst. Cont. Leg. Educ. 1978)) suggests that the practice of law implies the provision of services to another:

“It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. ***.” (Emphasis added.)

Although the legal profession has been reluctant to adopt a single, specific definition of the practice of law, the Supreme Court of Illinois has described the practice of law as follows:

“[T]he practice of law involves not only appearance in court in connection with litigation but also services rendered out of court. In litigated matters it involves not only the actual representation of the client in court but also services rendered in advising a client as to his cause of action or defense. The practice of law also includes the giving of advice or rendering services requiring the use of legal skill or knowledge. The commissioner in his report has submitted a definition for ‘practicing law,’ as follows: ‘Practicing as an attorney or counselor at law, according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.’ In our opinion this definition is substantially correct.” (Emphasis added.) (People v. Peoples Stock Yards State Bank (1931), 344 Ill. 462, 475, 176 N.E. 901, 907. Accord, In re Bodkin (1961), 21 Ill. 2d 458, 173 N.E.2d 440; People ex rel. Illinois State Bar Association v. Schafer (1949), 404 Ill. 45, 87 N.E.2d 773; People ex rel. Chicago Bar Association v. Tinkoff (1948), 399 Ill. 282, 77 N.E.2d 693, cert. denied (1948), 334 U.S. 833, 92 L. Ed. 1760, 68 S. Ct. 1348; Johnson v. Pistakee Highlands Community Association (1979), 72 Ill. App. 3d 402, 390 N.E.2d 640.)

Guided by these principles, we conclude that appellant’s conduct of all or part of the action for divorce in his own behalf, assuming he did conduct the action in part or in full, may not be deemed to be one of his “professional and business activities.”

Although an insurer’s duty to defend must be determined by the allegations in the complaint in the underlying case, if the complaint does not allege facts potentially within the coverage of the policy, the insurer has no duty to defend. (Dorre v. Country Mutual Insurance Co. (1977), 48 Ill. App. 3d 880, 363 N.E.2d 464.) In the case at bar, because appellant’s pro se conduct of the suit for divorce may not be said to be among his “professional and business activities,” as required by Coverage B(b), the only coverage provided by the policy that might have embraced his situation, the facts alleged in the complaint necessarily fail to bring the case within the policy coverage. Hence, the defendant has no duty to defend appellant in the suit brought by Dona Mendelsohn against him.

The granting or denying of a request for declaratory relief is a matter for the sound discretion of the trial court; to disturb its ruling on review there must have been an abuse of its discretion. (Wills v. O’Grady (1980), 86 Ill. App. 3d 775, 409 N.E.2d 17.) Dismissal of the complaint is an appropriate method of declining to grant declaratory relief. (Wills.) The trial court did not abuse its discretion in granting the defendant’s motion to dismiss the complaint for declaratory judgment, and we affirm its judgment.

Affirmed.

EARNS and EASSERMAN, JJ., concur.


author: PRESIDING JUSTICE HARRISON KASSERMAN, J.,

text:
      In re MARRIAGE OF ETHEL L. FOSTER, Petitioner-Appellant, and ALAN KENT FOSTER, Respondent-Appellee.
    Fifth District
    No. 82—502
    Opinion filed June 10, 1983.
    KASSERMAN, J., dissenting.
    R. N. Gandy, of Peek and Gandy, of Du Quoin, for appellant.
    Alan R. Farris, of Conn and Clendenin, of Sparta, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Ethel L. Foster, petitioner in this case, appeals from a final judgment of the circuit court of Randolph County which denied her petition to vacate a judgment of dissolution of marriage and to set aside the marital settlement agreement incorporated therein. The sole issue on review is whether the terms of the settlement agreement were unconscionable. For the reasons which follow, we affirm the judgment of the circuit court.

The parties were married on December 2, 1972, and until June 19, 1981, they lived together on an 11.78-acre tract of land which the respondent had acquired prior to the marriage. At the time of the marriage, the property was improved with a barn and a mobile home. The parties purchased a new mobile home and erected a second barn during the marriage. Part of the new barn was converted into a retail store at a cost of about $7,000. About $8,000 in profits was reinvested in the business as fixtures and furniture over the years. Various other items, including farm equipment and household furniture, were purchased during the parties’ marriage. Respondent was employed as a truck driver throughout the marriage and petitioner worked at various times as a waitress, sales clerk, police dispatcher and manager of the retail store. The parties were divorced on May 20, 1982, and custody of their only child was given to petitioner. The judgment of dissolution incorporated the parties’ marital settlement agreement. The agreement provided respondent with visitation rights to the child and required respondent to pay $60 per week child support. Respondent was also to pay petitioner $50 a week maintenance for four months and $1,000 in attorney fees. Under the agreement the respondent was to receive: the 11.78 acres of land valued at $90,000 by the respondent and $100,000 to $200,000 by the petitioner; the mobile home, valued at $15,000 and encumbered with a $5,000 debt; the new barn, valued at $15,000 and encumbered with a $9,800 debt; and the old barn valued at $2,500; five horses and two colts valued at $7,000; farm equipment and tools valued at over $11,000; a 1975 Chevrolet truck for which no value appears in the record; the parties’ business and inventory of approximately $26,000, encumbered by a $27,500 debt; $7,500 in proceeds from the sale of the parties’ motor home; and assumption of two of the parties debts totaling $11,000. The petitioner was to receive: two horses, valued at $3,000; equipment and appliances valued at over $3,000; a 1976 Chevrolet Caprice automobile, valued at about $2,500; $20,000 in cash plus seven years buying rights at 10% over wholesale at the parties’ business. The parties also made an equal division of their tax refund and proceeds from a hay sale. The settlement agreement was accepted by the trial court and incorporated into the judgment of dissolution. Within 30 days of the date the judgment was filed, the petitioner obtained new counsel and filed a petition in the nature of a post-trial motion. At the hearing on her post-trial motion, the petitioner testified that no one had threatened or tricked her and that she had read the agreement and was satisfied with it. The attorney who represented the petitioner during the dissolution proceeding testified at the hearing on the post-trial motion. He stated that the negotiations leading to the settlement agreement occurred over a period of months, beginning in March of 1982 and ending in late May of the same year. Neither party obtained professional appraisals of the value of any property. The attorney testified that he had conferred with the petitioner and advised her that she could go to trial and that if she did, the property division could be greater or less than the division effected by the agreement. The trial court denied the post-trial motion on July 26, 1982, finding, inter alia, that the agreement was not unconscionable.

The petitioner contends that the marital settlement agreement is unfair, unconscionable, and against public policy, and should therefore be set aside. The standard governing judicial review of a property settlement is that the settlement is “binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.” Ill. Rev. Stat. 1981, ch. 40, par. 502(b).

“This section does not eliminate many of the traditional grounds for setting aside settlement agreements, including grounds of fraud, coercion, and violation of any rule of law, public policy or morals. See Reininger v. Reininger, 67 Ill. App. 3d 21, 384 N.E.2d 546, 23 Ill. Dec. 752 (4th Dist. 1978). However, ‘fairness’ and other similar standards for setting aside settlement agreements have been replaced by the standard of unconscionability. See Held v. Held, 73 Ill. App. 3d 561, 392 N.E.2d 169, 29 Ill. Dec. 612 (5th Dist. 1979).” (Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 400 (SmithHurd 1980); see also In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 929-30, 428 N.E.2d 1005; In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1085-86, 424 N.E.2d 1342.)

No issue has been raised concerning fraud or coercion and petitioner’s brief cites no public policy implicated by the trial court’s judgment; consequently, the question before us is whether the trial court erred in finding that the agreement was not unconscionable. As support for her assessment of the agreement as unfair the petitioner has cited Crawford v. Crawford (1976), 39 Ill. App. 3d 457, 350 N.E.2d 103, which was decided before the effective date of section 502 and applied the prior law. (Reininger v. Reininger (1978), 67 Ill. App. 3d 21, 22-23.) Although many cases have cited Crawford with approval since section 502 became effective, “[o]ddly enough there are few Illinois appellate court cases that cite to section 502 of the Act when reviewing the propriety of a separation agreement.” (In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1085.) We believe the proper standard to be “unconscionability” rather than mere unfairness and we therefore distinguish Crawford, which was decided under the former statute. (But see In re Marriage of Hawkins (1982), 106 Ill. App. 3d 68, 71, 435 N.E.2d 786 (citing, inter alia, Crawford in affirming the trial court’s setting aside of an “unfair and inequitable” agreement).) “ ‘In order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including the knowledge of the other party.***’ ” (Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 401 (Smith-Hurd 1980), citing Uniform Marriage and Divorce Act sec. 306, Commissioners’ Note, at 137 (9A Uniform Laws Annotated (1979)).) From this statement, it can be inferred that the inquiry into unconscionability involves at least two separate considerations: one, the conditions under which the agreement was made (see, e.g., In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1087; In re Marriage of Perry (1981), 96 Ill. App. 3d 370, 375, 421 N.E.2d 274) and two, the economic circumstances of the parties resulting from the agreement (see, e.g., In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 930-31; In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 1087). These areas of inquiry will be considered in turn.

The petitioner argues that the conditions under which the parties reached the agreement were so oppressive as to render the agreement unconscionable. There was no allegation of nondisclosure or misrepresentation on respondent’s part. Petitioner’s characterization of the circumstances leading to the trial court’s approval of the settlement agreement as a “rush to judgment” is belied by the lengthy negotiations which preceded the agreement. Petitioner devotes a large portion of her brief to her trial attorney’s alleged failure to evaluate properly the marital or nonmarital character of the 11.78 acres of land. We make no determination of the actual status of the property; however, on this record an unequivocal evaluation by petitioner’s attorney would have been unwarranted. Consequently we find nothing in the circumstances surrounding the parties’ settlement to support a finding of unconscionability.

In determining whether the economic situation resulting from a settlement agreement is unconscionable, the appellate court has applied traditional concepts of unconscionability employed in commercial law. (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 930-31; see also Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 400-01 (Smith-Hurd 1980).)

“An unconscionable bargain has been defined as one ‘which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.’ (Hume v. United States (1889), 132 U.S. 406, 410, 33 L. Ed. 393, 395.) The term ‘unconscionability’ includes ‘an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.’ (Williams v. Walker-Thomas Furniture Co. (D.C. Cir. 1965), 350 F.2d 445, 449.) A contract is unconscionable when it is improvident, totally one-sided or oppressive. Walter E. Heller & Co. v. Convalescent Home of The First Church of Deliverance (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285; Neal v. Lacob (1975), 31 Ill. App. 3d 137, 334 N.E.2d 435.” (In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 930-31.)

Applying these general principles to the terms of the agreement, we are in accord with the trial court’s determination that the agreement was not unconscionable. While there was not an equal distribution of the property, petitioner was not left destitute as she received a $20,000 cash settlement. Consequently, we conclude that the agreement was not so totally one-sided as to be unconscionable. We therefore affirm the judgment of the circuit court of Randolph County.

Affirmed.

WELCH, J., concurs.

KASSERMAN, J.,

dissenting:

Under the rationale of In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005, and In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 424 N.E.2d 1342, it is my conclusion that the marriage settlement agreement approved by the trial court is unconscionable when viewed from the standpoint of the economic circumstances of the parties resulting from the agreement; therefore, I respectfully dissent.

Under the contract the defendant received approximately $100,000 more property than did plaintiff; and, although an equal division of marital property is not required, there should be a just division.

Therefore, I would reverse the judgment of the circuit court of Randolph County and remand the cause for a hearing on division of property.


author: PRESIDING JUSTICE HARRISON

text:
    MELVIN A. HANSON, Petitioner-Appellee, v. THE BOARD OF TRUSTEES OF THE STATE UNIVERSITIES RETIREMENT SYSTEM et al., Respondents-Appellants.
    Fifth District
    No. 82—523
    Opinion filed June 14, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (L. Kent Sezer, Assistant Attorney General, of counsel), for appellants.
    John D. Bauman, of Wagner, Bertrand, Bauman & Schmieder, of Belleville, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Defendants, the board of trustees of the State Universities Retirement System (hereinafter SURS) and Donald Hoffmeister, the executive director, appeal from the partial reversal of an administrative decision by the Madison County circuit court entered pursuant to the provisions of the Administrative Review Act. (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.) Specifically, they challenge the court’s decision that the plaintiff was eligible to receive SURS disability payments at the same time he was receiving workers’ compensation benefits, without any form of set-off or repayment. Defendants maintain that, according to section 15 — 153 of the Illinois Pension Code, SURS is entitled to reduce the amount of disability benefits awarded to a recipient who is also receiving workers’ compensation benefits, even if the awards are for two unrelated disabilities. (Ill. Rev. Stat. 1981, ch. IO8V2, par. 15 — 153.) We agree that the Code authorizes such a reduction and we, therefore, reverse the trial court’s order.

The following facts are relevant to this determination. The plaintiff, Melvin A. Hanson, became a participant in SUES in 1968 as an employee at Southern Illinois University. In September of 1974 he had his right kidney removed because of renal carcinoma. He sought and received disability benefits from SUES equal to one-half of his previous salary. He returned to work part-time during this period but then on July 5, 1975, he suffered a heart attack as a result of his employment. According to Hanson’s testimony, his doctor told him in 1977 that his disabilities were total and permanent. After he was denied increased benefits for the heart attack by the SUES, he filed a workers’ compensation claim. Over one year later, the arbitrator declared that Hanson was wholly and permanently incapable of working and allowed him an award retroactive from December 19, 1976. The Attorney General appealed unsuccessfully to both the Industrial Commission and then to the circuit court.

On August 30, 1980, the SUES disability benefits for Hanson’s renal carcinoma expired. Consequently, in May of that year, Hanson applied for retirement annuity pursuant to sections 15 — 135 and 15 — 136 (Ill. Rev. Stat. 1981, ch. IO8V2, pars. 15 — 135, 15 — 136). Hoffmeister, the director of SUES, refused to process Hanson’s application for retirement until the Attorney General issued an advisory opinion on the question whether the disability benefits paid by SUES should be offset by the workers’ compensation award. Pursuant to the Attorney General’s opinion that such double recovery was precluded under section 15 — 153, Hoffmeister recommended to the executive committee of the board of trustees of SUES that they approve the payment of his retirement annuity, “but withhold payment of that retirement annuity and offset the overpayment of disability benefits from such retirement annuity.” He cited section 15 — 185 as his authority for this decision. (Ill. Rev. Stat. 1981, ch. lOS1^, par. 15 — 185.) When the board of trustees approved Hoffmeister’s recommendation, Hanson filed suit challenging their decision. The circuit court’s reversal of the administrative decision is the subject of this appeal..

Section 15 — 153, in pertinent part, reads:

“In determining the monthly disability benefits payable to any participant, a deduction shall be made equivalent to any benefits payable to the employee under any State or Federal Workers’ Compensation or Occupational Disease Acts for any period for which disability benefits are payable ***.” Ill. Rev. Stat. 1981, ch. 1081/2, par. 15-153.

Hanson argues that the reason his disability benefits should not be reduced is because the heart attack is a different disease than the renal carcinoma. He maintains that a workers’ compensation award for a heart attack should not affect disability benefits which were awarded for another unrelated illness. He cites no authority for this argument, however, and our own research confirms that none exists. SUES cites the Attornéy General’s opinion, File No. 81 — 015, which advised that double recovery, even for unrelated injuries, is expressly prohibited by section 15 — 153. While not controlling, his opinion is entitled to considerable weight in resolving statutory questions of first impression. City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 130-31, 384 N.E.2d 310.

An examination of the statute convinces us that the Attorney General’s interpretation is correct. The language is clear and unambiguous. The legislature used the phrase “disability benefits,” a term which denotes payments made to a participant for disabilities arising from “any cause,” either occupational or non-occupational. (Ill. Rev. Stat. 1981, ch. IO8V2, par. 15 — 150.) It provided that these payments should be reduced by an amount equivalent to any benefits payable under “State or Federal Workers’ Compensation or Occupational Disease Acts,” compensation plans which cover only work related injuries or disease. Thus, if an employee receives workers’ compensation payments, any disability benefits he receives during that same time period, for whatever cause, must be reduced by the amount of workers’ compensation payments. If, as Hanson argues, the legislature had meant that the deduction would only be triggered when a double recovery for the same injury occurs, it would have added those very words:

“a deduction shall be made equivalent to any benefits payable to the employee [under the Workers' Compensation Act] for any period for which disability benefits are payable for the same injury, ***.”

The statute contains no such limitation. The fact that the addition of the words would significantly alter the meaning of the provision is further evidence that defendants’ broader reading is the accurate one. The statute was enacted simply to prevent a period of duplicate recovery, regardless of the sources. When the language of a statute is precise and the intent of the draftsmen is clear, the court’s only function is to enforce the law as enacted. Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 292, 403 N.E.2d 225.

In this case, the workers’ compensation benefits received by Hanson should be used as a set-off against the disability benefits he received. Since Mr. Hanson received an overpayment of disability benefits totalling $53,170.62 over a period from July 19, 1975, to August 30, 1980, this amount should be deducted from his retirement annuity, pursuant to section 15 — 185. The circuit court erred in holding to the contrary.

Consequently, the Madison County circuit court order which allowed plaintiff simultaneous recovery under the SUES disability plan and the Workers’ Compensation Act is reversed, and the decision of the board of trustees of the State Universities Retirement System is hereby reinstated.

Reversed.

KASSERMAN and WELCH, JJ., concur.


text:
    WILBUR GERMAN et al., Plaintiffs-Appellees, v. ILLINOIS POWER COMPANY, Defendant-Appellant.
    Fifth District
    Nos. 82—175, 82—272 cons.
    Opinion filed June 10, 1983.

      Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard F. Nash and James Neville, of counsel), for appellant.
    Cook, Shevlin, Keefe & Chatham, Ltd., of Belleville, and Rammel, Kamp, Bradney, Hall, Daham & Kuster, of Jacksonville (Bruce N. Cook, of counsel), for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Wilbur German, was severely injured when the metal fork of the hoist he was operating came into contact with high-voltage electrical lines owned by defendant, Illinois Power Company (IPG). Plaintiff sued, alleging several acts of negligence of which the following were submitted to the jury: whether defendant was negligent in failing to warn that the electrical lines were high-voltage lines; whether defendant was negligent in failing to warn persons in the vicinity of the lines that the covering was not insulation; and whether defendant was negligent in failing adequately to advise persons that they should request line protectors before working near electrical lines.

The jury, under the comparative negligence doctrine of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, returned a verdict for plaintiff and fixed plaintiff’s damages at $1,125,000. It found that plaintiff’s contributory negligence was 50% of the cause of the accident and judgment was entered for plaintiff for $562,500. Subsequently, plaintiff’s wife brought suit to recover damages for loss of consortium. The circuit court granted summary judgment for Mrs. German on the issue of liability; defendant appeals from both decisions.

In March of 1979, plaintiff contracted with the Armstrong-Andrews Company (A.A.Co.) to repair the roof of a 40-year-old, three-story warehouse. Although plaintiff had 15 years’ experience as a journeyman roofer, this was his first job as an independent roofing contractor. Plaintiff inspected the roof and surrounding area two weeks before he was to begin work. He noticed that the south side of the building was equipped with a railroad spur and loading dock and felt it would be an ideal location for setting up his equipment. The north side was rented to a trucking company. At the west end, the roof of the building was substantially lower, necessitating two lifts to get material to the higher roof. The south end of the east side was cluttered with debris.

Defendant’s electrical lines were located on the east side of the building. The lines angled from south to north, becoming as close as four feet eight inches at the northeast comer of the building where they were attached to a pole. The lines were 30 feet from ground level and 11 feet below the roof. They were installed by IPC in 1929.

Plaintiff began working on March 30. After being told by an employee of A.A.Co. that the company would be using the south side of the building, plaintiff felt his only choice was to set up his equipment on the east side. He located his supplies and his hoist, a gasoline-powered device used to lift material to the roof, about 10 feet south of the northeast corner. At this point the electrical lines were six feet nine inches from the building. The boom of the hoist, to which was attached a metal cable and fork, extended four feet two inches over the edge of the roof. Plaintiff estimated that even when the hoist was in operation, the boom cleared the lines by “at least two feet.”

Plaintiff did not contact defendant about his decision to work near the lines. Plaintiff testified that he believed the lines were low-voltage utility lines and because they were covered, he felt they were insulated and thus felt no danger in working in their vicinity.

To lift supplies to the roof, plaintiff operated the hoist from the roof while his brother-in-law loaded the supplies at ground level. Plaintiff’s father-in-law and son worked to remove supplies lifted to the roof. The four made numerous lifts without experiencing any trouble with the electrical lines, although plaintiff had to stop the hoist and steady the fork several times because of high gusts of wind.

About 10:30 that morning, plaintiff’s brother-in-law, Robert E. Culp, was shocked when he grabbed the metal cable as it swung loose. Apparently, he pulled the cable back so that it made contact with the electrical lines. The shock was not severe, although Culp’s gloves were burned. When Culp informed plaintiff of the shock, plaintiff stopped the hoist and took a closer look at the lines. He noticed gaps in the material covering the lines and concluded that the cable must have come in contact with a bare spot. He moved the hoist several feet so that it was located where the covering was intact, and the four men continued to work. About a half hour later, while plaintiff was in the process of lowering the fork to the ground for another load, a gust of wind caught the fork, blowing it into the electrical lines. Plaintiff was instantly shocked by the current in the 12,000-volt electrical system, resulting in severe injuries.

Defendant’s employees investigated the accident shortly after its occurrence. Lerton Krushas, area service manager for IPC, examined the lines and concluded that they were insulated. However, it was later determined that the lines were covered with a weatherproofing material, a substance which has no insulating capacity. At trial, several other IPC employees referred to the lines as insulated and an exhibit prepared by a company employee noted that “insulation on underside of C 0 conductor revealed signs of being slightly melted.” It was acknowledged that the public is unable to distinguish between insulated and weatherproofed lines. Defendant is presently phasing out the use of the weatherproofing material. The lines had serviced the building since it was built and were initially erected some 40 years prior to the accident.

There was extensive evidence at trial concerning defendant’s attempts to protect the public from the dangers of electricity. IPC employees testified that high-voltage electrical lines are not insulated because of the excessive weight the insulation creates but rather are located high above ground level where the public is unlikely to come into contact with the lines. They testified that warning signs are not placed on high-voltage lines or on the poles supporting the lines because they are considered a hazard to linemen and can become energized themselves. In addition, the absence of a warning sign at any one point might give persons near the line a false sense of security. Warning signs are used at ground level substations and to indicate the presence of underground lines because in these cases public contact is much more likely.

In order to protect those who are required to work near electrical lines, defendant provides temporary safety devices such as line guards or protective hoses or will temporarily relocate, remove or de-energize the lines. In addition, IPG employees are instructed to advise anyone they see working near electrical lines of the protective measures available. Defendant informs contractors of these services through periodic meetings and through advertising. Several of defendant’s employees testified that area contractors are aware of the safety measures; although, it was admitted that residential roofers, rather than commercial roofers, are generally present at the meetings. John Urbance, the area engineering supervisor for IPG, testified that during the two years preceding plaintiff’s injury the company had over 100 requests from contractors for temporary safety services.

Finally, it was uncontradicted that defendant was not in violation of any statute or national, State or local safety standard. Defendant was in compliance with an Illinois Commerce Commission standard requiring electrical lines to be at least three feet from any structure. There was no evidence of standards requiring warning signs on high-voltage electrical lines.

Defendant argues that during closing argument to the jury, plaintiffs’ counsel made several inflammatory comments aimed solely at arousing the prejudice of the jury. As a result of these improper comments and the fact that plaintiff broke down, cried and had to be removed from the courtroom during counsel’s argument, defendant claims he was denied a fair trial.

Defendant also objects to the damages instruction given by the court. The instruction advised the jury that it could consider five elements of damages in fixing the amount of plaintiffs’ recovery. Defendant claims that according to the supreme court decision in Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152, the instruction is erroneous because it listed “the nature, extent and duration of the injury” as a separate element of damages.

Finally, defendant argues that the judgment must be reversed because the jury’s verdict was a quotient verdict.

The first issue raised on appeal concerns defendant’s duty of care. Defendant argues that it owed no duty of care to plaintiff or if there was a duty, that it was only of ordinary care. Thus, defendant claims the court’s instruction to the jury that a high degree of care was owed to plaintiff was error.

Defendant argues that it owed no duty of care to plaintiff. However, in Merlo v. Public Service Co. (1943), 381 Ill. 300, 45 N.E.2d 665, the court stated:

“[A]n electric company using highly charged wires owes the legal duty toward every person who, in the exercise of a lawful occupation in a place where he has a legal right to be, whether for business, pleasure or convenience, is liable to come in contact with the wires to see that such wires are properly placed with reference to the safety of such persons and are properly insulated. (18 Am. Jur. p. 485.) There is nothing more than the ordinary care required under the circumstances when put into practice. The reason for requiring insulation and vigilance in maintaining the wires in proper condition is the deadly and dangerous power of the current carried along such wires.” 381 Ill. 300, 314-15, 45 N.E.2d 665, 674.

In Merlo plaintiffs’ decedents were electrocuted when the boom of a crane came in contact with an uninsulated high-voltage line, covered only with weatherproofing, which was erected over a parkway, part of the public streets in Maywood. The court stated that it could be anticipated that men would be working in the streets; therefore, the defendant, Public Service Company, owed a duty to the workmen to insulate and properly maintain the electric lines to protect them from injury in the event they came in contact with the lines.

The plaintiff does not claim that defendant had a duty to insulate these lines, and the defendant was not charged with negligence for failing to do so. Highly energized lines are customarily not insulated.

Plaintiff does argue that defendant had a duty to warn that these highly energized lines, that appeared to be insulated, were uninsulated, high-voltage lines, where the lines were erected parallel to the side of the building and in close proximity to the building.

We agree with plaintiff. The question of “duty” in these difficult cases is a vexing one. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) The unusual facts of this case distinguish it from such cases as Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, which we note, was not a negligence case but one predicated on strict liability in tort. We cannot say that it was unforeseeable nor that the defendant could not reasonably expect that some person rightfully on the roof of the building, as was the plaintiff here, might come into contact with these lines which appeared to be insulated, low-voltage power lines.

While it is true that the plaintiff knew these lines were energized, because of their appearance as being insulated he assumed that they were low-voltage lines that posed no great danger because they were insulated. Furthermore, the jury determined that his conduct was negligent and attributed 50% of the accident to his own contributory negligence. This case does not involve injuries to a person who claimed to be unaware of the dangers of electricity.

For these same reasons, we believe this case is distinguishable from Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App. 3d 1064, 344 N.E.2d 509, which involved contact by a 25-foot aluminum radio antenna with an uninsulated high-voltage, copper wire 22V2 feet off the ground, in compliance with Illinois Commerce Commission regulations, which, as the court noted in Merlo, is not determinative of defendant’s negligence.

We realize that this case may be distinguished from Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354, and McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242, 163 N.E.2d 454, where the court found that actual knowledge on the part of the power company that workmen were in a potentially perilous situation while working near highly energized, uninsulated lines gave rise to a duty to warn or take other precautions for their safety. Here, IPC had no actual knowledge that plaintiff was working on the roof of this building. It is also true that IPC had undertaken extensive advertising to inform contractors and the general public of the dangers of all electrical lines, high and low voltage, and had available various services to protect persons who might be required to work in proximity to electrical lines.

We also must acknowledge that the use of braided, weatherproof covering on high-voltage electrical lines was commonplace. (Austin v. Public Service Co. (1921), 299 Ill. 112, 118, 132 N.E. 458, 461; Merlo v. Public Service Co. (1943), 381 Ill. 300, 313, 45 N.E.2d 665, 673.) It has been suggested that where a power company knows, or has reason to know, that there is a danger that persons might come into contact with high-voltage lines, there may be a duty to warn that the weatherproof covering which gives a deceptive appearance of insulation, is not insulation and that such wires are uninsulated and carry high voltage. (Croxton v. Duke Power Co. (4th Cir. 1950), 181 F.2d 306.) We believe this duty existed under the unusual facts present here.

The high-voltage electric lines were installed in 1929. They ran in close proximity to the side of the building on which plaintiff was working. Numerous cases state that an electric company has a duty to insulate its lines or to warn if not insulated whenever it may be rea- . sonably anticipated that persons may come into contact with them. (See cases collected in Annot., 69 A.L.R.2d 9 (1960).) We cannot say as a matter of law that the defendant could not reasonably be expected to anticipate that some workman employed in or about this large commercial building might in some manner come in contact with these lines.

Additionally, here the lines appeared to be insulated. Plaintiff thought they were insulated; in fact, supervisory employees of the defendant thought they were insulated. Weatherpoof, protective covering on highly energized lines is no longer used, for the obvious reason that it appears to be insulation.

It would appear from the evidence that it is impractical to insulate high-voltage lines because of the weight of the insulation that would be required to accomplish this purpose. Because of this, the defendant should not cover the lines with a material that appears, even to its employees, to be insulation without providing adequate warning to the public. Heyer v. Jersey Cent. Power & Light Co. (1929), 106 N.J.L. 211, 147 A. 452.

Defendant further argues that if it had a duty of care to plaintiff, the duty was one to use ordinary care, not a “high degree of care.” Over the objection of defendant, the jury was instructed that IPC had a duty to use a high degree of care for the safety of the plaintiff. The jury was told that a “high degree of care” was “the degree of care commensurate with the known danger involved in the distribution of electricity which a reasonably careful person would use under circumstances similar to those shown by the evidence.” At the instruction conference, plaintiff advised the court that these instructions were adopted from those given and from language appearing in Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354. In Burke, however, the duty of a distributor of electrical energy was not discussed in the context of proper instructions to the jury, which, apparently, was not an issue in the case.

While we know of no Illinois case that has discussed or approved instructions in the form given here, language like that incorporated in the instructions has appeared in numerous cases. Thus, in McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242, 245, 163 N.E.2d 454, 456, the supreme court stated that the “hazardous enterprise of distributing electrical energy” requires a high degree of care. In Haberman v. Commonwealth Edison Co. (1980), 84 Ill. App. 3d 475, 405 N.E.2d 830, the court stated that Edison, as a supplier of electrical energy, was required to exercise a high degree of care.

It would appear to be the general rule in this country that a power company is held to a high degree of care in connection with the distribution of electrical energy (see cases collected at Annot., 69 A.L.R.2d 9 (1960)). Professor Prosser states that suppliers of electricity “must exercise a great amount of care because the risk is great.” (Prosser, Torts sec. 34, at 180 (4th ed. 1971)); however, the standard is still one of negligence and “[wjhat is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding only an increased amount of care.” (Prosser, Torts sec. 34, at 181 (4th ed. 1971).) Prosser continues by noting that some courts instruct the jury in terms of a “high degree” of care when all they mean to say is that greater or less care is required under some circumstances. He states, “[technically the ‘high degree’ instruction is incorrect, as a matter of principle; but it is not likely ever really to mislead the jury, and almost never can be called prejudicial.” Prosser, Torts sec. 34, at 181 (4th ed. 1971).

In Austin v. Public Service Co. (1921), 299 Ill. 112, 118, 132 N.E. 458, 460, the court stated that a distributor of electric power, because of the deadly force of electricity, “is bound to exercise care corresponding to the dangers incident to its use” which is “such care and caution as a person of ordinary prudence might be expected to exercise in the handling of such a silent and dangerous agency under similar circumstances.” This definition of negligence is incorporated into Illinois Pattern Jury Instruction (IPI), Civil, No. 10.01 (2d ed. 1971), which defines negligence in terms of what a reasonably careful person would do under circumstances shown by the evidence.

Considering the dangerous nature of electricity, the “circumstances” here present, reasonable care would seem to be the same as a high degree of care. (See Annot., 32 A.L.R.2d 244, 247 (1953).) We believe it would have been proper to instruct the jury in the language of Illinois Pattern Jury Instructions; however, the jury here was told, in essence, that a high degree of care was that which a reasonably careful person would use under the circumstances present, the distribution of electricity. This was an accurate statement of the law, and we agree with Professor Prosser that it was not likely to mislead the jury and could not be considered prejudicial.

The defendant argues that the damage instruction, which listed “nature, extent and duration of the injury” as a separately compensable element of damages, was improper under Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152. Defendant argues that it is entitled to a new trial on damages, should the court not reverse on other grounds assigned as error. The damage instruction given was IPI Civil, Nos. 30.01, 30.02 (2d ed. 1971). In Powers, however, the jury was given an itemized verdict form which directed the jury to compensate plaintiff for the “nature, extent and duration” of his injuries should the jury determine the issue of liability in plaintiff’s favor. There the duplicative nature of the award was obvious, here it is not, as the jury returned a general verdict fixing plaintiff’s damages. We simply do not believe that the holding in Powers is applicable here, particularly where the defendant has not argued that the total award of damages was excessive, and it is impossible to determine what part of that award was attributed to the nature, extent and duration of plaintiff’s injuries. The jury may well have “considered” the nature, extent and duration of plaintiff’s injuries without fixing an amount as a separate element of damages.

We have examined closely plaintiff’s argument to the jury and do not find any indication that plaintiff ever accused the defendant of intentionally injuring the plaintiff. Defendant made no objection to the remarks he now argues were improper. Plaintiff’s argument was certainly forceful, but it was not prejudicially improper. We find nothing in plaintiff’s argument of the kind this court condemned in Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383.

After plaintiff’s involuntary crying, he was immediately led from the courtroom by co-counsel. The trial court determined that this sudden outburst did not prejudicially influence the jury’s ability to determine the issues in the case. (Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 159, 349 N.E.2d 578, 583.) We cannot say that the denial of defendant’s motion for mistrial was an abuse of discretion or that this isolated incident so prejudiced the defendant as to warrant a new trial.

Defendant’s last assignment of error involves an alleged quotient verdict. After the jury returned its verdict, papers were found in the jury room containing 12 numbers which when averaged produced a figure of $1,125,000 and a figure of 50%. When a jury agrees in advance to arrive at a verdict by averaging, the verdict so rendered is improper. (Illinois Central R.R. Co. v. Able (1871), 59 Ill. 131.) There must be evidence, however, that the jury agrees to be bound by the average figure; the jury may experiment by considering average figures. (Kelley v. Call (1944), 324 Ill. App. 143, 57 N.E.2d 501.) Here there was no proof that the jury agreed in advance to a quotient verdict or what use was made of the figures written on the papers. The jury was polled, and each member affirmed that the verdict was his or her verdict. (City of Pekin v. Winkel (1875), 77 Ill. 56.) We would not be warranted in disturbing the verdict of the jury on such tenuous grounds.

In defendant’s separate appeal of the summary judgment granted Alice German, it does not argue that summary judgment was improper, on principles of res judicata, should we affirm the judgment in Wilbur German’s case. As we have done so, we need not consider the procedural matter raised in Alice German’s appeal.

The judgments of the circuit court of St. Clair County in cause No. 82 — 175 and in cause No. 82 — 272 are affirmed.

Affirmed.

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