author: Mr. Justice Davis

text:
    (No. 33623.
    Russell Belfield et al., Appellees, vs. Ralph Coop et al., Appellants.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

      Sears and Street, of Chicago, SamuEe Saxon, of Plainfield, and John P. Simpson, of Aurora, (Barnabas F. Sears, and Robert F. Casey, of counsel,) for appellants.
    Root & Hoeeman, of Morris, and David C. MewhirTER, of Yorkville, for appellees.
   Mr. Justice Davis

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Kendall County declaring that a certain instrument is not the last will and testament of Evreard Belfield, deceased, setting aside said instrument and declaring the probate thereof null and void. The decree was entered upon the verdict of a jury in an action brought by the plaintiffs, Russell Belfield and Helen Falkenberg, a nephew and niece of deceased and his sole heirs-at-law. The defendants were Ralph Coop and Sara Grate as joint executors of the will, and the legatees and devisees hereinafter named, all of whom appealed except Earl Horton and Florence Grate. Sara Grate, Ida Mae Silvius, Florence Grate and Earl Horton, defendants, were nieces and a nephew of Agnes Belfield, testator’s deceased wife.

Evreard Belfield, a resident of Kendall County, died in a hospital at Joliet, on April 19, 1953, at the age of 83 years. The will in question, dated April 16, 1953, was duly admitted to probate in the county court of Kendall County. It provided for the payment of the testator’s just debts and funeral expenses and the erection of a monument over his grave and that of his deceased wife; bequeathed $10,000 to each of the plaintiffs; devised a farm, containing 160 acres, valued at about $58,400, and known as the Belfield homestead, to Ralph Coop, a tenant; devised another farm of 143 acres, valued at about $47,500, known as the Wilson farm to Clinton Wilson, known as Jack Wilson, and described as a friend of the testator; devised a third farm, known as the Bundy farm, containing 160 acres and worth about $54,000 to Sara Grate, described in the will as testator’s niece; devised a fourth farm, known as the Grate farm, containing 158 acres and valued at $35,340, to a friend, Edward Markstrom, Sr.; devised a fifth farm containing 120 acres worth about $21,600, and known as the Dano farm to Ida Mae Silvius, designated as testator’s niece, and her husband, Jesse L. Silvius; directed the executors to give bond as required by statute and to sell the remaining farm lands to pay bequests and State inheritance and Federal estate taxes, and to distribute the balance, if any, in accordance with the residuary clause, which devised and bequeathed all the residue “to my nephews Russell Belfield and Earl Horton and my nieces Helen Ealkenberg, Sara Grate, Florence Grate and Ida Mae Silvius in equal shares, share and share alike.”

The evidence shows that Evreard Belfield left an estate valued in excess of $366,000, consisting of seven farms of the aggregate value of $311,992.50, and personal property valued at $54,013.29, and that the value of the residuary estate, after deducting specific legacies, fees and taxes, was $2730.84, or about $455.14 for each of the six residuary beneficiaries. Agnes Belfield, wife of the decedent, predeceased him by about a month, having died intestate, on March 18, 1953. The Belfields were married in 1906 and never had, or adopted, any children. This property was acquired largely through their joint efforts, but Agnes had inherited certain money from her parents which she contributed to the purchase of the farms. Title to five of the seven farms had been vested in Agnes and Evreard Belfield as joint tenants, and title to the Belfield homestead farm was in Evreard Belfield. Title to the Martin farm, which had originally been purchased by Agnes and her brother, had been vested in Agnes and Evreard Belfield as tenants in common. Evreard Belfield had executed a will on October 1, 1951, leaving his entire estate to his wife. Agnes Belfield left surviving as her sole heirs-at-law her husband and her sister, Margaret Horton, mother of Earl Horton, and her nieces, Sara Grate, Florence Grate and Ida Mae Silvius, daughters of a deceased sister, Janet Grate.

The complaint charged that the testator, at the time of the execution of the purported will, lacked testamentary capacity and was under the undue influence, dominion and control of the defendant Sara Grate, whereby her will was substituted for his.

All of the defendants except Earl Horton, who was defaulted, answered and denied the allegations of the complaint. At the trial the defendants made motions for a directed verdict generally and upon the issues of testamentary capacity and undue influence separately, both at the close of plaintiffs’ case and at the close of all the evidence. These motions were overruled as were motions for judgment notwithstanding the verdict and for a new trial. The errors assigned and argued here are: (1) that the trial court erred in admitting certain evidence on behalf of plaintiffs and excluding certain evidence offered on behalf of the defendants; (2) that error was committed in overruling various motions; (3) that the verdict is not supported by the evidence; (4) that the court erred in giving certain instructions tendered by plaintiffs; and (5) that the argument and conduct of counsel for plaintiffs was prejudicial.

Plaintiffs called defendant Earl Horton, one of the six residuary beneficiaries, as a witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1953, chap. 110, par. 184.) Over repeated objections by defense counsel, he was permitted to testify to conversations he said he had with Sara Grate relative to Evreard Belfield’s “attempting to make a will.” The objections were made upon the ground that any declarations or admissions by Sara Grate relating to testamentary capacity or undue influence were inadmissible and prejudicial as far as the other beneficiaries were concerned since the interests of the legatees and devisees under the will in question were several and not joint, and no conspiracy was charged. The court sustained a few of the objections interposed to statements attributed to Sara Grate by Horton and ordered the answers stricken, but allowed most of them to stand. The reasons for the alternating rulings are not apparent. For example, Horton at one point testified that Sara Grate said to him, “If he goes to the hospital, I don’t think we will get the will through, I don’t think we can.” An objection made at this time was sustained and the answer ordered stricken. But without being asked another question, Horton then volunteered: “Well anyway she expressed an opinion that it would be harder to get a will made while he was in the hospital.” The objection to this statement was overruled and it was allowed to stand. Both of these statements attributed by Horton to Sara Grate are to the same effect and, if objectionable, are equally so.

In substance, the conversations related by Horton as having talcen place between himself and Sara Grate were that Horton and Sara Grate conceived a plan of suggesting to Evreard Belfield that he make a will treating the nephew and nieces on Agnes Belfield’s side of the family and the nephew and niece on testator’s side of the family equally; that this plan was formulated after the death of Agnes Belfield when they learned that unless Evreard Belfield made a new will, all of the property would go to the testator’s heirs, the plaintiffs, Russell Belfield and Helen Falkenberg; that they went so far as to draft a simple form of a will with the idea of suggesting it to the testator, but Horton was to have no part in making the suggestion as in his words: “Well, Sara didn’t seem to want any help with that part. She thought she could handle that.” Horton depicts himself as playing a minor part while Sara Grate has the role of one ready and able to influence Evreard Belfield; and, if Horton’s testimony is to be believed, he was double-crossed by Sara Grate, as the will in question is nothing like the will allegedly discussed by them. Horton further testified to a conversation which was supposed to have taken place in the kitchen of the Belfield home the day before Evreard Belfield was taken to the hospital. At that time Horton says he asked Sara if she had made any progress toward drawing up the will. She is reputed to have said that she had not; that since the day Evreard had gone to the doctor, he had been in no condition to talk about a will; that her primary concern was to get him “happy” again before she approached him about the will. As part of the same conversation Sara is supposed to have said that Evreard would have to have oxygen soon or he would “croak,” and that she did not want him to go to the hospital because it would be harder to get a will made there. Horton also testified to a conversation he had with Sara after Belfield was in the hospital and on the very day the purported will was executed, wherein he asked her whether she had made any progress toward the will, and that she replied that she had not; that she had seen two lawyers and there was more to it than he thought. Horton stated that he then said that Evreard didn’t look very good to him and that it appeared that it was almost too late, and that Sara then told him that he might as well go as she was “going to work on Evreard.” On objection, the latter part of this conversation was ordered stricken. The statements attributed to Sara Grate by Earl Horton are replete with admissions or declarations.

Without further detailing the testimony of Earl Horton, it appears that the statements ascribed to Sara Grate have a direct bearing on the issues of both undue influence and testamentary capacity and, if believed, constitute admissions on her part that testator lacked testamentary capacity, could be influenced and that she intended to influence him in the making of his will. Though called under section 60 of the Civil Practice Act as an adverse party, Earl Horton, a defaulted defendant and a disappointed beneficiary, appears to have been more than willing to tell his story even to the extent of volunteering statements when no questions were asked. It should also be noted that Sara Grate was incompetent to testify directly in her own behalf, or in rebuttal, under section 2 of the Evidence Act, (Ill. Rev. Stat. 1953, chap. 51, par. 2,) and there was no one to deny, contradict, or qualify any of Horton’s testimony, as all conversations were supposed to have taken place when he and Sara Grate were alone. If, therefore, the statements or admissions were objectionable for the reasons assigned at the trial, they were doubly damaging because they could not be refuted. •

This court has consistently followed the rule that statements or admissions made by a devisee or legatee concerning the testamentary capacity of a testator, or acts of undue influence in procuring the execution of a will, while admissible where the interests of all the devisees or legatees are joint, are not admissible where their interests are separate and no conspiracy is charged. (Ginsberg v. Ginsberg, 361 Ill. 499; Powell v. Bechtel, 340 Ill. 330; McCune v. Reynolds, 288 Ill. 188; McMillan v. McDill, 110 Ill. 47.) This rule is adhered to in other jurisdictions and represents the great weight of authority elsewhere. (Annotation, 167 A.L.R. 13, 37.) The reason for the rule is that the declarant is not the only one interested in the issue to be tried and that it would be unjust to allow the interests of one beneficiary to be affected by the admissions or declarations against interest of another with whom he is not in privity; that to permit such testimony would allow one beneficiary, whose interest might amount to only a small part of the estate, by his statements to affect injuriously the interests of the other beneficiaries who might be entitled to the greater part of the estate. Counsel for plaintiffs do not contend that the interests in the will in question are joint. The fact is that separate farms are devised to the defendants Grate, Coop, Wilson, Marlcstrom and Silvius. Nor is it contended that any of these defendants conspired with Sara Grate. The complaint does not allege and there is no proof of such a conspiracy. The only person charged with undue influence is Sara Grate. To support their contention that the testimony in question was admissible, plaintiffs rely upon the decision of this court in Latham v. Rishel, 384 Ill. 478. A careful study of the decision in that case reveals that it is not authority for the proposition that Horton could be called to testify concerning statements and admissions on the part of Sara Grate. The Latham case holds that the plaintiffs in that will contest had the right to call Rishel, the named executor and principal beneficiary, under section 60 of the Civil Practice Act, and examine him as to his acts and conduct touching upon matters of alleged undue influence, and that section 2 of the Evidence Act and the general rule above discussed do not preclude such action. In that opinion we made it clear that the rule in the Ginsberg and other cases related to declarations and admissions and that they were not authority for the proposition that under the circumstances Rishel could not be called and examined as to his own acts and conduct. While the Latham case is authority for the proposition that Sara Grate might have been called by plaintiffs in this case and examined as to her acts and conduct, it is not authority for the proposition that Horton might be called to testify as to declarations or admissions by her to the prejudice of the other defendants whose interests were separate. The difference in the two situations is apparent. Aside from the distinction between declarations and admissions and testimony as to acts and conduct, the Latham case involves a situation in which the person charged with undue influence was called adversely to testify, and his incompetency as a witness thereby removed, whereas in the instant case Earl Horton testified as to admissions and declarations made by Sara Grate, the party charged with undue influence, and she was unable, because incompetent, to refute any of the testimony. We believe that under these circumstances the rule announced in the Ginsberg case, and the other cases cited, is applicable, and is required for the protection of the defendants, other than Sara Grate, whose interests are separate, and who are charged with no misconduct. To hold otherwise would abrogate the long established rule in this State and align this court against the great weight of authority elsewhere. This court is cognizant of criticism urged against this rule (Wigmore on Evidence, Third Edition, sec. 1081; Annotation, 167 A.L.R., 13, 49,') but is without suggestion of a more salutary principle of law to be applied under these circumstances. We hold that the testimony of Earl Horton as to the declarations and admissions of Sara Grate touching upon matters of alleged undue influence and lack of testamentary capacity was not admissible, and we quote from the case of McMillan v. McDill, 110 Ill. 47, at page 50, “There is no doubt but this evidence had an important bearing with the jury in the decision of the case, and if the evidence thus admitted was incompetent, for this error alone, the judgment will have to be reversed.”

The attorney who drafted the will instructed Sara Grate to take his wire recorder to the hospital and make a recording of the conversations with the testator prior to the execution of the will. She followed these directions and made a recording which consisted of her reading of the will to the testator, his statements, if any, at the end of each paragraph, together with his responses to specific questions including whether he knew where he was, the number of farms he owned, and whether he wanted to sign the will. At the trial the entire spool containing the recording was tendered in evidence after an offer of proof outside the presence of the jury. No objection was made by plaintiffs’ counsel as to the form of the offer of proof. The court rejected the wire recording, saying: “My notions are that Sara Grate is not a competent witness and that the reading of the will and his responses are not competent evidence. I can’t see how that can be admitted in evidence, and I will so rule on that.” Apparently the court reasoned that since Sara Grate was not a competent witness in her own behalf under section 2 of the Evidence Act, her reading of the will, and the questions and answers as recorded were therefore incompetent. We cannot agree that the recording was incompetent for that reason. In Garrus v. Davis, 234 Ill. 326, the trial court excluded the testimony of a witness to a conversation between the plaintiff contestant and the testatrix on objection that the witness should not be permitted to testify to what was said by the plaintiff contestant, which obviously referred to plaintiff’s incompetency under section 2 of the Evidence Act. This court indicated that the testimony as to the conversation was competent, and reversed the judgment for that and other errors. In the Garrus case, though the plaintiff was incompetent to testify to the conversations she had with testatrix because of said provisions of the Evidence Act, a competent witness, overhearing the conversations, was not disqualified for that reason. So in the present case if a competent person had witnessed the occurrences and overheard the conversations attendant upon the execution of the will, he would not be disqualified by the provisions of section 2 of the Evidence Act from relating those occurrences and conversations though they might involve questions asked or statements made by Sara Grate, who was an incompetent witness in her own behalf under the act. Does the fact that we have a wire recording instead of a human witness make a difference? We think not. There are comparatively few decisions on the admissibility of sound recordings in evidence, but most of the courts which have considered the question agree that such evidence is admissible if the proper foundation has been laid to assure the authenticity of the recording and its consequent reliability. (Annotation: 168 A.L.R. 927.) Such recordings have been received in civil (Paulson v. Scott, 260 Wis. 141, 50 N.W.2d 376; Boyne City, G. & A. R. Co. v. Anderson, 146 Mich. 328, 109 N.W. 429.) and criminal cases, (Commonwealth v. Clark, 123 Pa. Super. Ct. 277, 187 Atl. 237; People v. Hayes, 21 Cal. App.2d 320, 71 P.2d 321; State v. Raasch, 201 Minn. 158, 275 N.W. 620; State v. Perkins, 355 Mo. 851, 198 S.W.2d 704; 168 A.L.R. 920.) and their validity recognized by eminent text writers. (Wigmore on Evidence, 3d ed. sec. 795a, subpar. 3.) In Boyne City, G. & A. R. Co. v. Anderson, 146 Mich. 328, 109 N.W. 429, the recording was considered a mechanical witness. There a phonograph was permitted to be operated in the presence of the jury to reproduce sounds claimed to have been made by the operation of trains in proximity to respondent’s hotel. The court observed that the ground for receiving such recordings is stronger than for receiving evidence of telephonic conversations since there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves. In the case at bar, the fact that the recording is a mechanical rather than a human witness should not render the evidence incompetent provided there is proper foundation for its admission.

On this appeal, plaintiffs’ counsel argue want of proper offer of the wire recording and lack of adequate foundation for its admission. These objections were not made in the trial court and the recording was not excluded for such reasons. Counsel for defendants outlined an offer of proof to the court out of the presence of the jury, designed to lay a proper foundation for the admission of the recording. This offer included the proposed testimony of Walls Schreffler, an expert on such devices; that of Mrs. Di Domenic, one of the nurses who witnessed the will, and Samuel Saxon, the attorney who drafted the will and whose wire recorder was used. Counsel for defendants then said they would offer the entire spool in evidence. The court then ruled the wire recording inadmissible on the basis of section 2 of the Evidence Act. In view of the court’s ruling, the act of calling these witnesses before the jury, the formal marking and tendering of the spool, and its identification was not required. Had the objection made for the first time in this court been interposed at the trial, counsel for the defense would have had an opportunity to secure the trial court’s ruling thereon, and to call additional witnesses, if they were needed, to lay a proper foundation for this evidence. It is our conclusion that the wire recording was not inadmissible for the reason given by the trial court and that the question was properly preserved for review.

At the hearing upon the petition to admit the will to probate in the county court of Kendall County, Sara Grate was called and fully examined by counsel for the contestants under section 60 of the Civil Practice Act for the purpose of proving fraud, forgery, compulsion or other improper conduct. At the trial in the circuit court the defendants offered the complete authenticated transcript of the testimony of the witnesses who testified in the county court hearing. Lorraine Di Domenic and Dorothy N. Pullman were the attesting witnesses to the execution of the will, and Sara Grate was called as above stated. The trial court admitted the transcript of the testimony of the attesting witnesses but excluded that of Sara Grate upon the objection that she was not a competent witness in her own behalf under section 2 of the Evidence Act. Error is assigned upon this ruling. Counsel for defendants rely upon section 92 of the Probate Act (Ill. Rev. Stat. 1953, chap. 3, par. 244,) which provides, inter alia, that in will contest cases “An authenticated transcript of the testimony of any of the witnesses taken at the time of the hearing on the admission of the will to probate is admissible in evidence.” Counsel for plaintiffs contend that present section 92 of the Probate Act is derived from section 7 of the Wills Act of 1872 which provided that the certificate of the oath of the witnesses at the time of first probate shall be admitted as evidence, and that this court held in Lyman v. Kaul, 275 Ill. 11, that under section 7 only the transcript of the testimony of the subscribing witnesses was competent. The decision in the Kaul case was proper under the statute then in question, but that decision is not in point here. The Kaul case was decided in 1916. The statute then in effect and as later amended in 1919 made it clear that only the transcript of the testimony of the subscribing witnesses was competent. This was the law until the adoption of the Probate Act in 1939. The provision of section 92 of the Probate Act was not taken from the earlier acts, and by it the legislature enlarged the scope of the prior enactments and provided that a transcript of the testimony of any of the witnesses taken on probate is admissible upon the contest of the will. Counsel are asking this court to read into section 92 an exception to the effect that the transcript of the testimony of a witness incompetent under section 2 of the Evidence Act is not admissible, though he was called in the county court under section 60 of the Civil Practice Act. Had the legislature intended such an exception it would have expressly so provided.

It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. (People v. Price, 257 Ill. 587; 82 C.J.S., sec. 311.) “If in a statute there is neither ambiguity nor room for construction, the intention of the legislature must be held free from doubt. What the framers of the statute would have done had it been in their minds that a case like the one here under consideration would arise is not the point in dispute.” (People ex rel. Fyfe v. Barnett, 319 Ill. 403, 408.) The only legitimate function of the courts is to declare and enforce the law as enacted by the legislature, to interpret the language used by the legislature where it requires interpretation, and not to annex new provisions or substitute different ones, or read into a statute exceptions, limitations, or conditions which depart from its plain meaning. (People v. Boreman, 401 Ill. 566; Wall v. Pfanschmidt, 265 Ill. 180.) The language of the statute in question is certain and unambiguous and this court is not warranted in reading into it an exception which the legislature did not see fit to make.

Counsel for plaintiffs suggest that the fact that the county court admitted improper or incompetent evidence should not be binding upon the circuit court. This argument is predicated upon the erroneous assumption that the testimony of Sara Grate was improperly received in the county court, and sounds strange coming from the counsel who there called her under section 60 of the Civil Practice Act and insisted, over objection, that she testify. The county court correctly overruled the objection and directed Sara Grate to testify, and the evidence was competent. Section 69 of the Probate Act (Ill. Rev. Stat. 1953, chap. 3, par. 221,) clearly contemplates that testimony may be given in the county court to prove fraud, forgery, compulsion, or other improper conduct. It provides that upon the giving of certain testimony by the attesting witnesses the will is sufficiently proved to admit it to probate “unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the probate court is deemed sufficient to invalidate or destroy the will.” Nothing contained in section 2 of the Evidence Act prevents the admission of the transcript of evidence given in the probate court. That statute merely says that Sara Grate is not a competent witness in her own behalf in that proceeding. But Sara Grate does not, by offering the transcript, tender herself as a witness in her own behalf in the circuit court. Nor did she testify in her own behalf in the county court. It is our opinion that the transcript of the testimony of Sara Grate given in the county court was admissible in the circuit court proceedings and that the court erred in excluding it upon the belief that section 2 of the Evidence Act precluded its admission. Ill. Rev. Stat. 1953, chap. 3, par. 244; cf. Bley v. Luebeck, 377 Ill. 50.

Defendants assigned error to instruction No. 11 given at the request of plaintiffs on the presumption of undue influence. By this instruction the jury were told that if they believed from the evidence that the will of the testator was made for the chief benefit of Sara Grate and that said Sara Grate caused the alleged will to be prepared in the absence of the next of kin of said deceased, procured the witnesses thereto> and that the mind and memory of Evreard Belfield was wearied and debilitated by long, continued and serious illness, then a presumption of law arises that the will, was the result of the undue influence of Sara Grate, which presumption must be overcome by other evidence that the execution of said will was the result of the free deliberation and judgment of the said Evreard Belfield, and that unless the jury believed from the evidence that said presumption had been overcome, they should find said will not to be the last will and testament of Evreard Belfield, deceased. Defendants’ objection to this instruction is twofold: (1) that it is not based upon the evidence because the will itself shows that it was not made for the chief benefit of Sara Grate; and (2) that it fails to contain the element of fiduciary relationship without which such a presumption cannot arise.

Counsel for plaintiffs suggest that the evidence in this case shows the presence of a fiduciary relationship between Sara Grate and Evreard Belfield. The complaint, however, charges only actual fraud and coercion on the part of Sara Grate. Therefore, the only instructions relating to undue influence which could properly be given in this case must be based on actual fraud or coercion. This court has frequently pointed out the distinction between undue influence arising from coercion or active fraud and undue influence resulting from the abuse of a fiduciary relationship existing between the parties. (Weston v. Teufel, 213 Ill. 291, 299.) Where a party bases his case upon the existence of a fiduciary relationship, he should plead such relationship in the trial court and his failure to do so precludes making such claim on appeal. Wood v. Armstrong, 401 Ill. 111, 113.

The latest pronouncement of this court upon the subject of presumption of undue influence is found in Redmond v. Steele, 5 Ill. 2d 602 where, at page 610, it is said: “It is only where a fiduciary relationship exists between the testator and the devisee who received a substantial benefit from the will, where the testator is a dependent and the devisee a dominant party, and where the testator reposes trust and confidence in the devisee and the will is written or its preparation procured by the devisee that a presumption of undue influence arises. (Wiik v. Hagen, 410 Ill. 158; Mitchell v. Van Scoyk, 1 Ill. 2d 160.)” At page 612 of the same opinion it is stated: “In all the cases cited and relied upon by the contestants, the rule is laid down that requires the following: (1) That there must be fiduciary or confidential relationship, (2) that the devisee is the dominant and the testator is the dependant party, and (3) that the will was procured by and in favor of the fiduciary through the use of his dominant fiduciary or confidential relationship.” This is a clear statement that absent a fiduciary relationship no presumption of undue influence can arise.

Plaintiffs rely upon the decisions of this court in England v. Fawbush, 204 Ill. 384; Sulzberger v. Sulzberger, 372 Ill. 240; Friberg v. Zeutschel, 379 Ill. 480 and Mitchell v. Van Scoyk, 1 Ill. 2d 160. A careful reading of England v. Fawbush reveals nothing inconsistent with the decision of this court in Redmond v. Steele. In England v. Fawbush, 204 Ill. 384, the complaint charged lack of testamentary capacity and improper restraint and undue influence by Perry Joseph England, one of the plaintiffs in error. At page 393 of the opinion this court stated: “The active agency of the beneficiary of a will in procuring it to be drawn, especially in the absence of those who have at least equal claims upon the justice of the testator, and where the testator is enfeebled by old age and disease, is a circumstance which indicates the probable exercise of undue influence. Where the mind is wearied and debilitated by long, continued and serious and painful sickness, it is susceptible to undue influence and is liable to be imposed upon by fraud and misrepresentation. ‘The feebler the mind of the testator, no matter from what cause, — whether from sickness or otherwise, — the less evidence will be required to invalidate the will of such person’.” We have examined the instructions considered in that opinion and none involved the question of a presumption of undue influence. All were based upon actual fraud or coercion. That opinion as quoted, holds that where actual fraud or coercion is charged, the active agency of the beneficiary of a will in procuring it to be drawn, especially in the absence of those who have at least equal claims upon the justice of the testator and where the testator is enfeebled by old age or disease, is a circumstance which indicates the probable exercise of undue influence. This rule is stated in the same language in Mitchell v. Van Scoyk, 1 Ill. 2d 160, 172 and Donnan v. Donnan, 256 Ill. 244, 251.

While there may be language in the opinions in the Sulzberger and Friberg cases which indicates that a presumption of undue influence may arise in the absence of a fiduciary relationship, such language was unnecessary to the result. This court referred to those opinions in Challiner v. Smith, 396 Ill. 106, at page 111: “In both Sulzberger v. Sulzberger, 372 Ill. 240 and Friberg v. Zeutschel, 379 Ill. 480, the beneficiary was present and was a principal beneficiary, and did occupy fiduciary or confidential relationships which invoked the presumption claimed to exist here.”

In Mitchell v. Van Scoyk, 1 Ill. 2d 160, this court referred to the Sulzberger and Friberg cases and recognized that the language of those cases announced that the presumption arises irrespective of the existence of a fiduciary relationship between the parties, and at page 173 stated: “But we believe the plaintiff’s case is further strengthened by the evidence of a fiduciary relationship between the parties. Where a fiduciary and dominant party, in whose behalf a will is drawn, is directly connected with the making of the will by its preparation or by participating in its preparation and execution, proof of these facts establishes prima facie the charge that the will resulted from undue influence exercised by the beneficiary. (Wiik v. Hagen, 410 Ill. 158; Dial v. Welker, 328 Ill. 56; Gum v. Reep, 275 Ill. 503; Yess v. Yess, 255 Ill. 414; Leonard v. Burtle, 226 Ill. 422.)” Thus, in the case of England v. Fawbush, this court did not consider the presumption of undue influence, and in all the remaining cases relied upon by plaintiffs a fiduciary relationship, together with the other circumstances necessary h> raise the presumption, was present. Any language in those opinions indicating that such a presumption might arise absent a fiduciary relationship was unnecessary and is expressly repudiated. It follows that plantiffs’ instruction No. 11 did not correctly state the law and the giving of that instruction was error.

The assignment of error based upon alleged prejudicial conduct of plaintiffs’ counsel centers about statements made in argument to the jury to which no objections were made. The rule generally adopted is that such assignments of error will not be considered on appeal unless objection to the alleged prejudicial argument has been made in the trial court, a ruling of the court obtained and the record showing the objection and the ruling preserved. (Gaddie v. Whittaker, 344 Ill. 149; North Chicago Street Railway Co. v. Cotton, 140 Ill. 486.) Although that may be the general rule and may suffice to secure justice in a majority of cases, some of the remarks of counsel in the argument in this case were so highly prejudicial as to be worthy of our comment and censure. The defendants were, at various times during the argument, characterized as “thieves,” “usurpers,” and “defrauders.” These appellations were in the plural and referred to all of the defendants even though there was no evidence that the defendants Coop, Markstrom, Wilson or Silvius had anything to do with the making of the will. Sara Grate was the only person charged with undue influence. Repeated references were made to Samuel Saxon, one of defendants’ counsel, as “Sammy” Saxon. One of the attorneys for plaintiffs told the jury that he had never drawn a will where he had to ask a doctor if the testator was competent, as Saxon had done in this case, and inferred that Saxon was not a reputable attorney. But plaintiffs’ attorneys not only belittled opposing counsel, Saxon, they also spoke with praise about their own methods of handling such matters and their high standards of ethics and conduct. One of plaintiffs’ counsel, a county judge from a neighboring county, advised the jury that he had extensive experience in his court in dealing with wills, and that it was his duty to uphold wills. He inferred that there must be something wrong with this will or he would not be in the circuit court representing the contestants.

So much of this argument was prejudicial and unwarranted that a duty devolved upon the court to inject itself into the proceedings sufficiently to see that the litigants received a fair trial. It is always the duty of a trial court to control the proceedings to the extent necessary to insure this result. This court has said that in discharging this duty it is not always enough that the court sustain objections, but in a proper case it should act promptly to stop misconduct. (Bishop v. Chicago Junction Railway Co. 289 Ill. 63.) In a clear case this court will reverse a judgment because of improper conduct and prejudicial statements of counsel even though the trial court has sustained objections thereto, rebuked counsel, and directed the jury to disregard such statements. (Appel v. Chicago City Railway Co. 259 Ill. 561.) If the argument of counsel is seriously prejudicial, a court should, of its own motion, stop the argument and direct the jury not to consider it. (McWilliams v. Sentinel Publishing Co. 339 Ill. App. 83; Rudolph v. City of Chicago, 2 Ill. App.2d 370.) If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.

Since we are of the opinion that the decree in this case must be reversed and the cause remanded for a new trial for the reasons already given, it will not be necessary to discuss the other assignments of error. The decree of the circuit court of Kendall County is reversed and the cause is remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Klhstgbiel Davis, J., Hürshby, C.J., and Schaseiír, J.,

license: Public Domain

text:
    (No. 33603.
    In re Loran S. Clark (licensed to practice law as Loran Simeon Clark), an Attorney.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

    Davis, J., Hershey, C.J., and Sci-iaefer, J., specially concurring.
    Charles Levitón, of Chicago, amicus curiae.

    Loran S. Clark, pro se.

   Mr. Justice Klhstgbiel

delivered the opinion of the court:

The board of managers and the committee on grievances of the Chicago Bar Association, as commissioners of this court under Rule 59, have filed a report finding the respondent, Loran S. Clark, guilty of unprofessional conduct as an attorney, and recommending that he be disbarred and his name stricken from the roll of attorneys. Respondent has filed exceptions to the report.

The finding and recommendation are predicated upon four separate complaints, each charging the conversion to his own use of moneys entrusted to respondent for others. Eight complaints, designated as counts I through VIII, respectively, were investigated by the commissioners. They dismissed counts IV and V. As to counts I and VII the commissioners concluded the evidence would not warrant any discipline greater than censure, and no discipline was recommended on these specifications. It would serve no useful purpose to set out in detail the evidence concerning the complaints dismissed by the commissioners and those upon which no recommendation was made, and we shall discuss only the four instances relied upon by the commissioners in support of their recommendation.

On January 26, 1953, respondent represented Werner Danielson, who entered into a contract on that date to sell a tavern business to Edwin A. Johnson for the sum of $2200. The contract recited payment of $200 as earnest money deposit to respondent, who signed the agreement as escrowee, and provided for payment of the balance of $2000 upon consummation of the sale, to occur not later than five days after the date of the agreement. By the terms of the contract the sale was conditioned upon the parties obtaining for the buyer a lease for a period of at least three years at a monthly rental not to exceed $115. It was provided that if the parties were unable to obtain such a lease for the buyer, the transaction was to become null and void at the option of the buyer and the deposit returned to him. The owner of the building refused to give a lease on the terms recited in the contract between Danielson and Johnson, and the latter then demanded of respondent that he return the $200 deposit. Respondent replied that it was downtown in a safety deposit box and he would return it on Eebruary 4 at the tavern. On that date Johnson and his attorney came to the tavern, at which respondent’s client was also present, but respondent failed to appear. Several weeks later Johnson met respondent at another tavern and asked him for the money. Respondent told Johnson not to bother him. Thereafter Johnson repeatedly tried without success to reach respondent at his office and at his home. At the time of the hearing, more than a year after the transaction in question, respondent said he still had the $200 in his possession. To justify retention of the money respondent testified, without supplying details, that it was Johnson’s fault the sale was not consummated; that his client had suffered damages as a result; that he was holding the deposit for his client as well as for Johnson; and that he claimed a lien on the $200 for his attorney’s fees.

On the Hunter specification the evidence showed that in the spring of 1952 Irene Hunter employed respondent to represent her in connection with the estate of her deceased husband, whose will had left his entire estate to one Samuel Miller. Mrs. Hunter executed a power of attorney authorizing respondent “to execute my name on all documents, checks and papers and do whatever is necessary in the Estate of Martel Hunter, Deceased.” To avoid a will contest the attorney for the estate entered into an arrangement with respondent whereby Mrs. Hunter was to receive one third of the estate. In response to her request for a partial distribution, the respondent, on June 2, 1953, obtained a check for $100 payable to his client. He endorsed the check by signing the name of the payee and of respondent as “Atty for Hunter Est.” He thereupon cashed the check, but the proceeds were not delivered to Mrs. Hunter until February, 1954, after she had made her complaint to the committee on inquiry of the Chicago Bar Association and had testified.

Mrs. Hunter testified that after May, 1953, she attempted to reach respondent by telephone “and he was never home.” An attorney who did some work for the estate testified that during a period of four or five weeks before the estate was closed in September, 1953, he called respondent many times but never received a response, and wrote one or two letters which were not returned.

After Mrs. Hunter had made her complaint, respondent wrote a letter to the bar association stating in part that “No distribution in the estate has been made, however, I made arrangements with Mr. Sullivan for them to forward Mrs. Hunter $100.00, which she may have at any time. I never have taken any retainer from Mrs. Hunter. In reference to her assertion as to my disappearing will say that I have been out of town practically two months during the summer vacation time; most of time spent being on business.” In explanation of his statement that he had “made arrangements with Mr. Sullivan for them to forward Mrs. Hunter $100.00,” respondent testified that “Sullivan said her share would be around $200.00 and I told him to send her the other $100.00. This was on October 6th and Sullivan set the matter down for October 13th. The $100.00 I had reference to is the $100.00 I got. I said I made arrangements with Sullivan to send it to her direct.” He further testified that when he stated no distribution had been made he was referring to the final distribution and not the partial distribution he had received, that he did not write any letter to Mrs. Hunter advising her he had the money, but that after cashing the check he called her home and told her mother to make an appointment with him to come and get it.

The next specification involves Leo Hausman, Sr., whose son held a contract jointly with his former wife for the purchase of certain real estate. They were being pressed for the balance due on the contract, and in June, 1952, Leo Hausman, Sr., consulted respondent about securing title to the lot and thus salvaging the money his son had paid on it. He requested respondent to find out how much would be required to obtain a deed. After two or three weeks respondent informed him it would take $504.99, and a check for that amount was delivered to respondent for that purpose. Respondent said he cashed the check and placed the money in his vault in an envelope. Thereafter Hausman repeatedly called respondent without result, and in October, 1953, he finally requested respondent to return the money so that Hausman could handle the matter himself. Respondent replied that he did not have it at that time. On February 19, 1954, after complaint had been pending and Hausman had first testified before the commissioners, respondent’s wife finally paid the money to the attorney for the vendor.

As excuse for his failure to carry through the transaction respondent testified that he had been trying for a year to secure a quitclaim deed from the former wife of Hausman’s son, in order to enable the vendor to give good title; that she had been seeking to set aside the divorce decree and was antagonistic toward Hausman, Jr., and respondent, who had represented him in the divorce; and that she did not sign the quitclaim deed until October, 1953. He further testified that after December, 1953, he offered to return the money to Hausman, Sr., but the latter insisted upon interest, which respondent refused to pay.

The final specification relied upon by the commissioners discloses that on December 6, 1948, Nell G. West retained respondent to handle the probate of her deceased husband’s estate. She paid him a retainer of $85. At various times thereafter she paid him a total of $167 for publishing expense and executor’s bond. After September, 1949, Mrs. West repeatedly requested him to close the estate. In November, 1952, Mrs. West called respondent, who came to her home. She asked him when he was going to close the estate, and respondent admitted he had been lax about the matter. Mrs. West then stated she would not give him any more funds for bond premium or expenses. In that year respondent filed a final account and closed the estate subject to filing vouchers. Finally, after the hearings in this proceeding had begun, Mrs. West delivered to respondent the sum of $116.65 for the balance of bond premium, costs and expenses, which were thereafter paid and the necessary vouchers filed. It is undisputed that the estate was valued at $20,000; that the only fee received by respondent was the $85 initial payment; and that the total sum of $167 advanced by Mrs. West for costs and expenses were insufficient to pay them in full. The commissioners take the position that the funds advanced for specific purposes should have been promptly applied to them even though further costs were needed to close the estate, and that failure to do so shows respondent converted the sums to his own use.

The commissioners, on the record made, have recommended the severest disciplinary action on the ground, apparently, that an intent to wrongfully convert funds to his own use can be inferred from the repeated instances of delay and negligence in properly applying them to the purpose for which they were entrusted. We have repeatedly held that the wrongful conversion by an attorney of funds placed in his hands for a specific purpose involves moral turpitude and is a flagrant violation of his duties, clearly warranting disbarment. In re Thomson, 3 Ill.2d 308; In re Rosenberg, 413 Ill. 567; In re Yablunky, 407 Ill. 111; In re Koptik, 406 Ill. 141; In re Rieger, 402 Ill. 483.

Rule 59 of this court provides for investigations concerning practices of attorneys “which tend to defeat the administration of justice or to bring the courts and the legal profession into disrepute.” (Ill. Rev. Stat. 1951, chap, no, par. 259.59.) To warrant disciplinary action it is not necessary to show fraud, deceit, or as apparently assumed by the amicus curiae, a wrongful conversion of funds entrusted for a specific purpose. (In re Veach, 1 Ill.2d 264, 272; See In re Goldstein, 411 Ill. 360, 366.) "The standard of professional integrity applicable to those admitted to practice is not satisfied by such conduct as merely enables them to escape the penalties of the criminal laws.” (In re Alschuler, 388 Ill. 492, 502.) Any conduct of an attorney which necessarily tends to bring discredit upon the profession is an abuse of the privilege secured to him by his license, and if persisted in will constitute sufficient cause for disbarment.

One cannot read the present record without being convinced that respondent has been guilty of glaring procrastination, delay and inattention to the matters entrusted to him. His failure to return the $200 deposit involved in the Johnson specification is inexcusable. His neglect to make ordinary arrangements for his long periods of absence, as exemplified in the Hunter specification, is highly inconsiderate and shows gross carelessness in the performance of his duties. Procrastination of the type exhibited in the Hausman specification, and the loose, careless and dilatory practices followed by respondent in the conduct of matters entrusted to him, can hardly fail to bring the legal profession into disrepute. Respondent’s repeated failure to recognize the sacredness of his duties and the necessity for irreproachable conduct in his profession evidences a moral obtuseness which his feeble explanations are totally insufficient to mitigate. We have heretofore observed that “To the extent that this court has guaranteed the fitness of one to assume the responsibilities of a member of the bar, it is its duty to recall its certificate whenever it is clearly proved that the holder of a license is no longer worthy of being entrusted with those trusts and confidences which the license indicates he is worthy to assume.” (In re Alschuler, 388 Ill. 492, 503.) It is vital to the well-being of society and the administration of justice that attorneys, who are officials of the court and a part of our judicial system, should maintain the most scrupulous care in conducting themselves, and should discharge their duties in such manner as will secure and preserve the respect and confidence of the public. The trust and confidence which his clients must necessarily repose in an attorney require in him a high standard and an appreciation of his duties to them, to his profession, and to the public.

We are not unmindful of the fact that because of the serious consequences to him, the power to discipline an attorney should be administered with moderation. But his clients, the court and the entire profession all have a vital interest in his integrity and the conscientious performance of his duties, of which obligations he could at any time be reminded by a glance at his certificate. Expressions of derision and distrust of lawyers, however unfounded as to the great majority, are not to be given basis by exonerating those guilty of repeated violations of an obligation solemnly undertaken. We cannot condone gross carelessness of this kind practiced by respondent, and thus induce laymen to consult him with the confidence which a license by this court should inspire. We cannot permit this respondent to continue the practice of law, and thus invite the public to retain the purported services of one to whom the common obligations of his profession mean so little.

The conduct shown by this record makes it our duty to strike the name of respondent from the roll of attorneys. The report .and recommendation of the commissioners are approved. Respondent’s name is stricken from the roll of attorneys of this court.

Respondent disbarred.

Davis, J., Hürshby, C.J., and Schaseiír, J.,

specially concurring: While we agree with the result reached by the court, we dissent from the general implication that the proof in the case fails to show criminal or dishonest conduct. Under the Johnson, Hunter, and Hausman specifications, as set forth in counts II, III, and VI, we believe the proof clearly shows fraudulent motives, lack of honesty, and moral turpitude.


author: Mr. Justicr Maxwrrr

text:
    (No. 33699.
    Zelma E. Myers, Admx., Appellee, vs. Stanley Krajefska, Appellant.

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

      Monror & McGaughry, of Decatur, for appellant.
    Hrnson, Morthrand & Hrnson, of Decatur, for appellee.
   Mr. Justicr Maxwrrr

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Macon County in favor of appellee, Zelma E. Myers, as administratrix of the estate of her deceased husband, as plaintiff, against Stanley Krajefska, appellant, defendant below. Plaintiff’s action as administratrix was based upon fatal injuries sustained by her deceased husband while riding as a guest in defendant’s automobile. The cause was tried by the court without a jury, judgment was entered in favor of the plaintiff and defendant appeals to this court because the constitutionality of section 2 of the Wrongful Death Act is challenged. Ill. Rev. Stat. 1951, chap. 70, par. 2.

The complaint as amended charged that on June 14, 1953, defendant, Stanley Krajefska, drove his automobile on a certain Illinois highway, that decedent was riding with him as a guest, that decedent was free from contributory wilful and wanton misconduct, and that defendant was guilty of wilful and wanton misconduct by driving his automobile through a barricade and into a gravel hopper. Plaintiff charged defendant was guilty of one or more of the following acts: (a) failing to keep and maintain proper lookout, (b) failing to keep his automobile under proper control and being unable to stop the same or keep his automobile on the right half of the highway to avoid running into and colliding with other vehicles and objects lawfully on said highway, (c) operating his automobile at a speed greater than was reasonable and proper, having regard to the traffic and the condition of the highway, and driving his automobile at a high rate of speed in violation of section 49 of the Uniform Act Regulating Traffic on Highways, (d) failing to have his automobile equipped with brakes adequate to control the movement of his automobile to prevent its colliding with other objects lawfully on said highway, (e) failing to sound his horn in violation of section 115 of said act, (f) operating his automobile while under the influence of intoxicating liquor, and (g) otherwise wilfully and wantonly operating and driving his automobile so as to cause injury and death to plaintiff’s intestate.

Defendant’s answer as amended denied the charges of wilful and wanton misconduct, denied decedent’s freedom from contributory misconduct and charged sections 1 and 2 of the Wrongful Death Act are unconstitutional. Defendant filed no motions attacking plaintiff’s complaint as amended.

The evidence at the trial showed that plaintiff and the decedent were married and at the time of his death plaintiff and four minor children survived. On the date of the occurrence decedent visited his wife at the hospital where she was awaiting the birth of their youngest child and from the hospital decedent went to the home of a brother-in-law where he had dinner. Decedent and the brother-in-law drove to a tavern in Macon where each had two bottles of beer. They then purchased six cans of beer which they took to the Macon race track. At the race track they met defendant and his girl friend. At the races defendant drank one can of beer and part of another and when the races were called, due to rain, the parties arranged to meet at the tavern in Macon. When they met at this tavern each of the three men had a bottle of beer and after being there for half an hour they agreed to meet at a tavern in Pana. They drove south on Route 51 in defendant’s automobile with defendant driving, his girl friend sitting to his right and decedent’s brother-in-law to her right. Decedent sat in the rear seat. As they proceeded south at a point approximately two miles north of Moweaqua there was a bridge in a state of repair with barricades on both sides of it, with flares in front of them and a detour road leading around on the east side of the paved road. Signs both north and south of the bridge warned of the barricade and detour. As defendant travelled south on the highway after coming off the detour he saw four to six signs on the east side of the road.

The car stopped at Assumption where all the occupants except Myers went into a tavern. Here defendant and decedent’s brother-in-law each had a bottle of beer. The evidence seems to indicate that Myers, the decedent, did not enter the tavern because he was asleep. Upon leaving Assumption the brother-in-law drove the car south for a mile or two and then defendant took over the driving and drove to a tavern at Pana. Decedent was still sleeping in the back seat of the car and only defendant and his girl friend entered this tavern. Here defendant had one or two bottles of beer and after a few dances they left. Defendant resumed driving his car with the girl friend in the center front seat and the brother-in-law of decedent to her right. Defendant drove north on Route 51 at a speed of approximately 50 to 60 miles per hour on the way back to Decatur. It had been raining and was misty at the time. The windshield wipers on defendant’s car were working. As defendant proceeded north out of Moweaqua he saw the signs on the right hand side of the road indicating the detour ahead and approached the first sign at a speed of approximately 50 to 60 miles an hour. Defendant testified that when he was about nine car lengths south of the detour road an oncoming car blinded him with its lights causing him to “hit the brakes all of a sudden.” When the car started to swerve because of the slick pavement he let up on the brakes and as the other car passed defendant’s car went through the barricade and into the hopper. Defendant stated that when he was about one and one-half car lengths from the barricade he again applied his brakes but there was gravel and mud on the pavement causing his car to slide as though it were on ice and that he continuously had his brake applied until he struck the hopper. Defendant was the only witness who testified to the version concerning the other car. The brother-in-law was dozing at the time of the occurrence and defendant’s girl friend, now his wife, was in the hospital at the time of the trial, in confinement for the birth of her child. No reason was advanced for failure to take her deposition. The circumstantial evidence indicates the decedent was still asleep in the rear seat at the time of the occurrence. Circumstantial evidence, though not conclusive, of disinterested witnesses driving north on the same highway and arriving at the scene shortly after the occurrence indicates no other automobile going in the opposite direction passed these witnesses. The other evidence in the record related to the size and number of highway signs warning of the detour, the flares, the type of barricade, the size and weight of defendant’s automobile and the size, weight and structural details of the gravel hopper. Certain witnesses testified as to the slippery and muddy condition of the highway near the scene. Plaintiff’s father testified to seeing defendant the morning following the occurrence while visiting at the hospital, that he smelled alcohol, that defendant’s tongue appeared to be thick and in his opinion defendant was under the influence of intoxicating liquor.

Defendant now urges that section 2 of the Wrongful Death Act is unconstitutional; that the judgment entered for plaintiff is contrary to the law and the evidence; and that the trial court’s judgment be reversed, or reversed and remanded.

It is defendant’s contention that, in view of the decision of the United States Supreme Court in First National Bank of Chicago v. United Air Lines, Inc. 342 U.S. 396, the second proviso of section 2 of the Illinois Wrongful Death Act, which attempted to prohibit causes of action in this State for wrongful death occurring outside the State where a right of action existed and service could be had in that State, is unconstitutional. We have so held in Allendorf v. Elgin, Joliet & Eastern Railway Co. ante, p. 164, decided this day. Defendant reasons that it was the obvious intent of the legislature to exclude from the benefits of the Wrongful Death Act a certain class of persons and that, if this proviso alone be held invalid, the benefits of the act are then extended to a class of persons not within the intent of the legislature. Therefore, defendant concludes not only section 2 but the entire act is void. We have frequently held that although certain portions of an act of the legislature may be void, other portions may be valid, and that where the two are not so connected in subject matter and so dependent upon each other that the legislature would not be presumed to have passed the one without the other, the valid portions will be allowed to stand. Springfield Gas and Electric Co. v. City of Springfield, 292 Ill. 236; People ex rel. Yohnka v. Kennedy, 367 Ill. 236; Grennan v. Sheldon, 401 Ill. 351.

Defendant’s rationalization contained in his reply brief urges that the entire act is unconstitutional and leaves in force only the statute as it existed prior to 1903 limiting plaintiff to damages in the amount of $5000. An examination of the Wrongful Death Act in its entirety reveals that the invalid proviso, which came into the act by amendment in 1903, is clearly severable and the valid and severable portions will therefore be enforced. (See County of St. Clair v. Industrial Com. 380 Ill. 376.) If that which remains after the unconstitutional portion of a statute is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section or act unconstitutional. Grasse v. Dealer’s Transport Co. 412 Ill. 179, certiorari denied 344 U.S. 837.

The record reveals that there is no proof as to some of the allegations of defendant’s wilful and wanton misconduct. As to other charges it is fair to state that the record reveals such evidence although, as in many cases, it is conflicting. Defendant did not challenge the sufficiency of the allegations of wilful and wanton misconduct as pleaded. Where the trial court has heard the testimony and observed the witnesses we are not at liberty to disturb its judgment unless we can say that such judgment is manifestly against the weight of the evidence. (Reese v. Layman, 2 Ill. 2d 614.) An examination of all the evidence leads us to conclude that the said judgment is not against the manifest weight of the evidence in this case.

Defendant urges that the definition of wilful and wanton conduct contained in the case of Schneiderman v. Interstate Transit Lines, Inc. 394 Ill. 569, is erroneous. We point out here that as used in the Illinois guest statute, section 42-1 of the Motor Vehicle Act, the statute employs the term “wilful and wanton misconduct.” (Ill. Rev. Stat. 1951, chap. 95par. 58a.) Defendant states that the definition was originally borrowed from a Missouri case which confuses wilful and wanton conduct, negligence and the last clear chance doctrine. We have examined the various cases cited by defendant, and while it is to be noted that in many instances different wording, language and terminology is employed by the different courts in various instances, the basic general concept of the term as applied to the facts in the particular cases has remained essentially the same. The basic element in all of these cases indicates that liability can be founded under such a cause of action where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved. The knowledge concerning other persons can be actual or constructive. As indicated by the decisions of other States which do not employ this term, it is generally considered in that area of fault between ordinary negligence and actual malice. In view of the fact that it is a matter of degree a hard and thin line definition should not be attempted. As stated in Mower v. Williams, 402 Ill. 486, “as to whether or not there has been wilful and wanton conduct in any given case necessitates close scrutiny of the facts as disclosed by the evidence, and while the rule of law does not vary, the facts to which the law is applicable always present divergent circumstances and facts which, in most instances, are wholly dissimilar.”

Defendant urges that there is no evidence of the decedent’s lack of contributory wilful and wanton misconduct. It is true that there is no positive, affirmative evidence as to what decedent did or did not do at the time of the actual occurrence and immediately prior thereto. However, the circumstantial evidence indicates that while decedent was riding in the rear seat he was still asleep. Under such circumstances proof of lack of contributory wilful and wanton misconduct may be made by circumstantial as well as by direct evidence. A greater or less probability leading, on the whole, to a satisfactory conclusion is all that can reasonably be required to establish controverted facts. Devine v. Delano, 272 Ill. 166; Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96.

For the foregoing reasons the judgment of the circuit court of Macon County is hereby affirmed.

Judgment affirmed.


author: Mr. Justice Schaeeer

text:
    (No. 33718.
    The People ex rel. Chicago Dental Society, et al., Appellees, vs. A.A.A. Dental Laboratories, Inc.—(A-1 Dental Plate Laboratory Company, Inc., et al., Appellants.)

      Opinion filed March 22, 1956
    Rehearing denied May 22, 1956.

      Werner W. Schroeder and Oliver C. Heywood, both of Chicago, (Theodore W. Schroeder, and James E. Hastings, of counsel,) for appellants.
    Ecicert, Peterson & Lowry, of Chicago, (Owen Rall, and John R. Porter, of counsel,) for appellees.
   Mr. Justice Schaeeer

delivered the opinion of the court:

In this case those provisions of the Dental Practice Act which relate to persons who manufacture and repair substitutes for natural teeth are challenged upon many constitutional grounds.

The action was instituted in the superior court of Cook County on the relation of the Chicago Dental Society and a number of its officers, directors and members against 36 persons, groups of persons or corporations engaged in the dental laboratory business in Chicago. The amended complaint charged the defendants with practicing dentistry without licenses, soliciting dental patronage from the public by advertising and practicing dentistry under the name of a corporation, company, association or trade name, all in violation of the Dental Practice Act. The relief sought was a permanent injunction restraining defendants from violating the act.

The statute provides a comprehensive scheme of regulation of the practice of dentistry. The controversy centers primarily upon sections 5a and paragraphs (8) and (9) of section 5. Section 5 provides that a person practices dentistry "(8) Who takes impressions of the human tooth, teeth, or jaws or performs any phase of any operation incident to the replacement of a part of a tooth, a tooth, teeth or associated tissues by means of a filling, a crown, a bridge, a denture or other appliance; or

“(9) Who furnishes, supplies, constructs, reproduces or repairs, or offers to furnish, supply, construct, reproduce or repair prosthetic dentures (sometimes known as ‘plates,’) bridges or other substitutes for natural teeth, to the user or prospective user thereof.” Ill. Rev. Stat. 1955, chap. 91, par. 60.

The portion of section 5a which is most sharply disputed provides: “Licensed dentists may employ or engage the services of any person, firm or corporation to construct or repair, extra-orally, prosthetic dentures, bridges, or other replacements for a part of a tooth, a tooth, or teeth. A person, firm or corporation so employed or engaged, when constructing or repairing such dentures, bridges or replacements, exclusively, directly and solely for licensed members of the dental profession, and not for the public or any part thereof, shall not be deemed or considered to be practicing dentistry as defined in this Act.” The remainder of the section restricts the advertising activities of persons, firms and corporations so engaged. Ill. Rev. Stat. 1955, chap. 91, par. 60a.

The effect of these provisions is to make it unlawful for dental laboratory technicians to take impressions for false teeth, or to make or repair them, except when engaged or employed to do so by a licensed dentist.

By motions to dismiss the amended complaint, certain defendants attacked the Dental Practice Act on constitutional grounds. An order was entered on the motions to dismiss which found section 5a unconstitutional to the extent that it prohibited defendants from selling prosthetic dentures (plates), bridges, or other substitutes for natural teeth directly to the user or prospective user, where the patient employs a licensed dentist who takes the necessary impressions, gives an order or prescription therefor, and makes the fitting thereof in the oral cavity.

After defendants had answered, the cause was referred to a master in chancery who conducted extended hearings. On plaintiffs’ motion the complaint was dismissed as to seven defendants or groups of defendants. Decrees granting injunctive relief were entered by consent against two defendants, and a default decree was entered against one. In accordance with the master’s recommendation, the decree found that all but four of the remaining defendants were practicing dentistry without licenses and permanently enjoined them from the practices described in the decree. In accordance with the ruling made on the motions to dismiss, the decree provided that defendants might sell substitutes for natural teeth directly to users or prospective users when a licensed dentist takes the necessary impressions, gives an order or prescription therefor, and makes the fitting thereof in the oral cavity. The plaintiffs have cross-appealed from those portions of the decree which reflect this ruling. As to four defendants, the decree found the evidence insufficient to show that they constructed or repaired dentures, bridges or other replacements for human teeth except directly and solely for licensed dentists, and that their advertising did not violate any of the provisions of the Dental Practice Act. The complaint was dismissed as to them. One defendant died during the pendency of the litigation, and the complaint was dismissed as to him. Twelve defendants against whom decrees were entered prosecute this appeal; plaintiffs cross-appeal, and the appellants and the four defendants as to whom relief was denied are cross appellees.

Defendants’ principal contention is that the statute deprives them of due process of law under the State and Federal constitutions. Voluminous testimony establishes beyond doubt that the furnishing of artificial dentures is intimately related to the general health of the patient, and that the mechanical work of making the denture is but a small part of the total undertaking, which always requires biological, physiological and pathological knowledge, and sometimes surgical skill. This relationship justifies legislative regulation of dentistry, including prosthetic dentistry, (Lasdon v. Hallihan, 377 Ill. 187,) and indeed the defendants concede in their reply brief that the legislature can regulate the activities of dental technicians. .

It is argued, however, that although the general subject is within the legislative competence, the particular regulation is unreasonable, arbitrary and unrelated to concerns of public health. It is pointed out that under the act no qualifications are established for the laboratory technicians who malee dental plates. Any person may do so, and the only qualification, it is said, is that the work must be done through the brokerage of a dentist. It is argued that the dentist is thus given what amounts to governmental control over the laboratory technician, which may be exercised arbitrarily since no standards are prescribed. The technician is afforded no protection; his success, is dependent upon the favor of the dentist.

We emphasize at the outset that decision does not depend on our appraisal of the wisdom of the enactment, and that “it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.” (Williamson v. Lee Optical of Oklahoma, Inc. 348 U.S. 483, 487.) That we might regard certain provisions as unnecessary is immaterial if they can be said to be reasonably related to a legitimate legislative concern.

The aim of the statute is to restrict the practice of dentistry to licensed dentists with the exception that extra-oral work on dental appliances may be done by nondentists who are engaged or employed by dentists to do it. To that end, dental technicians are prohibited to do work on dental appliances directly for the public. The evidence establishes that the knowledge and skill of the dentist is necessary in the diagnosis of the case, the taking of impressions, the issuance of instructions to the laboratory and the testing, fitting and adjustment of a prosthetic denture. It is argued, however, that the limit of legislative power is reached when the statute requires that the impression be made upon the order of a dentist who also fits the appliance into the oral cavity, and that the technician cannot be prohibited from selling the denture directly to the patient. This was the view taken by the trial court upon the motion to dismiss, and as has been stated, the plaintiffs have cross-appealed from those portions of the decree which reflect that ruling.

In our opinion the power of the legislature is not exhausted when it has provided that there shall be professional supervision at the inception and the conclusion of what is essentially a single process. It may, if it sees fit, go further and insure that responsibility to the patient shall not be fragmented, and it may focus that responsibility upon a member of the profession which it regulates. By that means, compliance with the requirement that the dentist shall fit the appliance in place and make the necessary adjustments may be enhanced, protection against inferior workmanship and materials and exorbitant prices may be ensured, and the dentist can be certain that the work for his patients is done by those in whose integrity, competence and skill he has confidence.

Advertising by dentists is severely restricted. The record in this case shows that many of the defendant technicians have by persistent and blatant advertising sought to deal directly with the public, and that control of dental patronage has thus come into the hands of laboratory technicians who have directed it to such dentists as they saw fit. Prohibition of direct dealing between the makers of dentures and the public may thus be thought desirable to avoid the danger that the profession of dentistry may become “subservient to the business of those engaged in the making of plates.” Lasdon v. Hallihan, 377 Ill. 187, 195.

Lasdon v. Hallihan is decisive of the central issue in this case and of some of the peripheral issues as well. The statute which was before the court in that case provided that dental plates might, “under certain specified conditions, be made by one who is not a licensed and registered dentist. Such conditions are (a) the impression from which the plate is to be made must be taken by a licensed dentist; (b) the person engaged in the making of such appliances shall not offer to sell them or the services rendered in the construction of them to the public and (c) the placing and adjustment of the plates in the oral cavity shall be performed by a licensed dentist.” (377 Ill. at 190.) The statute was sustained against attack upon the constitutional grounds here urged.

The defendants, however, urge that the Lasdon case was in effect overruled by our decisions in People v. Brown, 407 Ill. 565, and Schroeder v. Binks, 415 Ill. 192, or alternatively that the Lasdon case was wrongly decided. In the Brown case certain sections of the Plumbing License Law of 1935 were held unconstitutional. That act classified plumbers as master plumbers, journeymen plumbers and plumber’s apprentices, and required a license for each classification. A journeyman plumber could carry on his work only under the supervision of a licensed master plumber. An apprentice could learn the plumbing trade only as an employee of a licensed master plumber. A journeyman plumber seeking a master plumber’s license was required to show that he had been actually engaged by a master plumber for a prescribed period. An apprentice applying for a journeyman plumber’s license was required to show that he was to be immediately employed by a master plumber. The court held that the act granted master plumbers a monopoly, and that it constituted an unwarranted exercise of the police power.

The Plumbing License Law of 1951, adjudged unconstitutional in Schroeder v. Binks, 415 Ill. 192, was vulnerable in large measure to the vices which infected the earlier Plumbing License Law. The provision of the former statute requiring journeymen and apprentice plumbers to be employees of master plumbers was eliminated and a provision substituted requiring supervision by master plumbers of all plumbing work done by journeymen or apprentices. The substitution did not meet the prior objection. As we observed (415 Ill. at p. 197) : “In all of this there is no suggestion that protection of the public health is enhanced by the requirement that all of the work of a licensed journeyman must be supervised by a master. Rather it appears that the roots of the requirement reach back to an economic pattern which is anachronistic today.” In neither of the two cases was any attempt made to show the existence of economic evils which might have been thought to justify legislative action, and none were apparent.

There is in the present case no prescribed economic hierarchy, with access to each successive stage controlled by the dominant interest. Any person is free to become a dental laboratory technician. The statute places no artificial restraint upon him. His success is determined by the normal process of competition. By the statute his direct dealings are limited to those who are peculiarly fitted by education and training to judge the quality of his work. But in this restriction there may be protection for members of the public who lack the capacity to make an informed appraisal of the quality and value of the product, and protection as well for the economic independence of a profession serving public health needs. The General Assembly has regarded the limitation in the statute as necessary to protect the public and the dental profession, and we are unable to say that its determination is entirely without foundation. We adhere to our decision in Lasdon v. Hallihan, and we are not persuaded to the contrary by Berry v. Summers, 76 Ida. 374, 283 P.2d 1093, in which statutory provisions similar to those here involved were held invalid.

Defendants also attack the validity of sections 5 (a) and 18(b) of the act (Ill. Rev. Stat. 1955, chap. 91, pars 60(a), 72(b),) which limit the type of advertising which may be done by those who are subject to the act. The objection is not directed to any of the specific restrictions which the act contains. Rather it appears to be based upon the assumption that the General Assembly is without power to restrict in any way the advertising of dental laboratory technicians. The contrary has been squarely held. Lasdon v. Hallihan, 377 Ill. 187, 194; Winberry v. Hallihan, 361 Ill. 121; see also Perlom v. Board of Dental Examiners, 332 Mass. 682, 127 N.E.2d 306; cf. Williamson v. Lee Optical of Oklahoma, Inc. 348 U.S. 483; Klein v. Department of Registration and Education, 412 Ill. 75; Roberts Optical Co. v. Department of Registration and Education, 4 Ill.2d 290.

Defendants further contend that subsections (8) and (9) of section 5 and section 5a violate section 13 of article IV of our constitution in that they contain matter not within the title of the Dental Practice Act, “An Act to regulate the practice of dental surgery and dentistry in the State of Illinois.” Section 13 of article IV provides that no act shall embrace more than one subject, which shall be expressed in the title. The contention rests upon the argument that the making of false teeth is not the practice of dentistry, and that, not being “dental surgery” or “dentistry,” provisions relating to this activity cannot properly be placed in the Dental Practice Act. The precise contention has been decided adversely to defendants. Lasdon v. Hallihan, 377 Ill. 187, 196.

Defendants make the additional contention that section 5(9) of the Dental Practice Act is special legislation of the character prohibited by section 22 of article IV of our constitution and the equal protection clause of the fourteenth amendment to the Federal constitution. This contention was also rejected in Lasdon v. Hallihan, 377 Ill. 187.

By their cross appeal, plaintiffs contend that, irrespective of the extent to which four of the defendants may have dealt with licensed dentists, the decree is erroneous in not enjoining them from advertising in telephone directories, by window posters, and by public display of specimen dentures, and from dealing directly with the public. The decree found as to Martin Dorner, doing business as Capitol Dental Laboratories, and also as Dorner Dental Laboratories, that he had carried one-quarter page display advertising in the Chicago Red Book since March of 1950, which included the following phrases: “New Tru-Pit Transparent Dental Plates — Emergency Repairs — Some Less Than 30 Minutes — Newest Types — Pull or Partial Individualized Dentures Made By Master Technicians — All Plates Fitted With Gold Pin Teeth — 26 Years’ Experience to the Dental Profession.” A photograph shows that Dorner exhibited specimen dentures in the sidewalk show window of his laboratory. He also advertised in religious publications and in a theater. All of these forms of advertising are clearly prohibited by section 5(a), with the exception of the use of the telephone directory. As to that, the statute permits an announcement “by business card.” The master found that Dorner came within the purview of section 5a but that he was not violating that section’s provisions relating to advertising or announcements. This conclusion was predicated upon the interpretation that section 5a contains “no limitation on the size of ‘announcements’ which can be made in a telephone directory.” We disagree; the one-quarter page display advertisements referred to in the master’s report and the decree amount to a “media calling attention of the public to their business,” which is prohibited, rather than a “business announcement” which is permitted. This conclusion applies with like force to defendant’s advertising in church publications and in the theater and to his display of specimen dentures in his shop window. While there is no evidence showing that this defendant dealt directly with the public, his advertising activities clearly show a purpose to do so, and in our opinion justify a decree restraining him from dealing directly with the public. The decree, so far as it relates to Dorner’s advertising, and in so far as it fails to enjoin him from dealing directly with the public, is erroneous.

For the reasons stated concerning Martin Dorner, the decree is in part erroneous as its affects (1) Carl F. Dorner, doing business as Ogden Dental Laboratory, (2) Thomas P. Shanahan, doing business as Shanahan Dental Laboratories and West End Dental Laboratories, and (3) Comfort Plate Dental Laboratory.

In 19 paragraphs the in junctional orders contain the following exception: “except that defendant may sell said substitutes for natural teeth to the user or prospective user thereof where the user or prospective user thereof employs a licensed dentist who takes the necessary impressions therefor, and who gives an order or prescription therefor, and who makes the fitting thereof in the oral cavity.” These parts of the decree adhere to the order entered on May 1, 1952, adjudging section 5a of the Dental Practice Act unconstitutional in part. For the reasons which have been stated, these portions of the decree are erroneous.

It becomes unnecessary to consider plaintiffs’ contention upon their cross appeal that the trial court erred in refusing to enforce subpoenas duces tecum to compel three of the defendants to produce books and records for examination before the master in chancery. The decree against two was substantially the same as the decree against the other defendants who are appellants here, and what has been said is applicable to these defendants. The third of these defendants is Carl F. Dorner, doing business as Ogden Dental Laboratory, whose situation has already been discussed.

The decree of the superior court of Cook County is reversed with respect to (1) Martin Dorner, doing business as Capitol Dental Laboratories and Dorner Dental Laboratories, (2) Carl F. Dorner, doing business as Ogden Dental Laboratory, (3) Thomas P. Shanahan, doing business as Shanahan Dental Laboratories and West End Dental Laboratories, and (4) Comfort Plate Dental Laboratory, and the cause is remanded as to them, with directions to grant the injunctive relief sought. The decree is also reversed to the extent that it provides that any defendant may sell substitutes for natural teeth to the user or prospective user where he employs a licensed dentist who takes the necessary impressions, gives an order or prescription therefor, and makes the fitting thereof in the oral cavity. In all other respects, the decree is affirmed. The cause is remanded, with directions to proceed in conformity with this opinion.

Affirmed in pa/rt, and reversed in part and remanded, with directions.