text:
    (No. 54851.
    THOMAS PELHAM et al., Appellants, v. RONALD E. GRIESHEIMER, Appellee.

      Opinion filed June 18, 1982.

      MORAN, J., took no part.
    William E. Hartnett, of Waukegan (Joseph W. Griffin, of counsel), for appellants.
    Snyder, Clarke, Dalziel & Johnson, of Waukegan (Julian Johnson, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Plaintiffs appeal the dismissal of their amended complaint for failure to state a cause of action for legal malpractice against the defendant, Ronald Griesheimer. The circuit court of Lake County held that there was no attorney-client relationship between the plaintiffs and the defendant and that therefore no cause of action for legal malpractice was stated. The appellate court affirmed. (93 Ill. App. 3d 751.) We granted plaintiffs leave to appeal (73 Ill. 2d R. 315).

Plaintiffs’ amended complaint alleges that the defendant was retained to represent Loretta Ray in a divorce action against her husband, George Ray. The plaintiffs herein are the children of Loretta and George Ray, all of whom were minors at the time the divorce was granted in June 1971. The divorce decree contained a provision requiring George Ray to “maintain all four of his children as the prime beneficiaries in his life insurance policies.” George Ray had a $10,000 life insurance policy through his employer at the time the divorce decree was entered. After the divorce decree was entered, he remarried and named his second wife the beneficiary of the insurance policy. She received the proceeds after his death in 1976.

The complaint also alleges that the defendant owes the plaintiffs “the duty to exercise a reasonable degree of professional care and skill, as an attorney, with reference to seeing that the plaintiffs became the prime beneficiaries in all life insurance policies which insured GEORGE J. RAY.” The complaint also alleges that the defendant breached that duty by “negligently and carelessly,” inter alia, failing to notify George Ray’s employer, or the insurance company, of the divorce-decree provision and failing to advise Loretta Ray to notify her ex-husband’s employer or insurance company of the provision. Finally, the amended complaint alleges that “as a direct and proximate result of the negligent acts or omissions of the defendant” the plaintiffs have suffered monetary damage.

Plaintiffs argue that their complaint states a cause of action for breach of contract. The plaintiffs maintain that this complaint should be construed to allege that the children are direct third-party beneficiaries of the contract between their mother, Loretta Ray, and her attorney, the defendant. The defendant argues that the complaint fails to allege that a contract was entered into for the direct benefit of the plaintiffs and that, in any event, the plaintiffs herein could not have been intended beneficiaries of the contract.

The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 307.) We acknowledge that pleadings are to be liberally construed with a view to doing justice between the parties. (Ill. Rev. Stat. 1977, ch. 110, par. 33(3).) In considering a motion to dismiss, however, “the pleadings are to be construed strictly against the pleader.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421.) Illinois requires fact pleading under its Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, pars. 31, 33.) Notice pleading, as used in Federal courts and other jurisdictions, is not sufficient. Although sections 42(2) and 33(3) of our practice act (Ill. Rev. Stat. 1977, ch. 110, pars. 42(2), 33(3)) contain provisions concerning liberal construction, such provisions do not remedy the failure of a complaint to state a cause of action. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 427.

The amended complaint herein clearly fails to state a cause of action for breach of contract. The amended complaint fails to allege, legally or factually, that a contract was entered into for the direct benefit of the plaintiffs, which is an indispensable element of a third-party beneficiary theory of recovery. (Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44; People ex rel. Resnik v. Curtis & Davis, Architects & Planners, Inc. (1980), 78 Ill. 2d 381; Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252.) The making of a contract with an attorney for the benefit of a third party does not necessarily create an attorney-client relationship between the attorney and the third-party beneficiary.

Also, this complaint for legal malpractice is couched in terms of negligence, not contract. Throughout the complaint there are allegations that the defendant attorney owed certain duties to the plaintiffs and that he negligently breached those duties. Paragraph 4 of the complaint states:

“That the Defendant *** owed to the Plaintiffs the duty to exercise a reasonable degree of professional care and skill, as an attorney ***.”

Paragraph 5 states:

“That the Defendant *** failed to exercise a reasonable degree of professional care and skill by negligently and carelessly doing one or more of the following ***.”

Paragraph 8 states:

“That as a direct and proximate result of the negligent acts or omissions of the defendant ***.”

If plaintiffs' amended complaint states a cause of action at all, it is in tort, rather than contract.

A complaint for negligence, to be legally sufficient, must set out facts that establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Cunis v. Brennan (1974), 56 Ill. 2d 372, 374.) The determination of the duty — whether the defendant and the plaintiffs stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the plaintiffs — is an issue of law for the determination of the court. Mieher v. Brown (1973), 54 Ill. 2d 539; Prosser, Torts sec. 45, at 289 (4th ed. 1971).

In concluding that the plaintiffs’ complaint failed to state a cause of action, the appellate court relied on the fact that no attorney-client relationship — no privity — existed between the plaintiffs and the defendant and, therefore, no duty existed. We consider that privity is not an indispensable prerequisite to establishing a duty of care between a nonclient and an attorney in a suit for legal malpractice. In this case, however, we find that no duty existed between the parties to this lawsuit.

The traditional, general rule has been that the attorney is liable only to his client, not to third persons. (National Savings Bank v. Ward (1880), 100 U.S. 195, 25 L. Ed. 621.) The concept of privity has long protected attorneys from malpractice claims by nonclients. We note that several Illinois cases have refused to extend the obligations of an attorney to nonclient third parties. In Bloomer Amusement Co. v. Eskenazi (1979), 75 Ill. App. 3d 117, the contract seller of certain realty brought an action against the attorney for the contract purchaser, alleging negligence in the attorney’s failure to record the real estate contract. In affirming the trial court’s granting of summary judgment for the attorney, the court quoted from National Savings Bank v. Ward (1880), 100 U.S. 195, 200, 25 L. Ed. 621, 623, that “the general rule is that the obligation of the attorney is to his client and not to a third party,” absent fraud or collusion.

More recently in Byron Chamber of Commerce, Inc. v. Long (1981), 92 Ill. App. 3d 864, 868, the appellate court stated:

“It is the general rule and the rule followed in Illinois that a contract for professional services between a lawyer and a client does not create a professional obligation between the lawyer and an unknown third party.”

Though both Bloomer and Long arose under substantially different factual circumstances than the case at bar, both recognized the traditional requirement of privity for a non-client to recover from an attorney. See Annot., 45 A.L.R3d 1181 (1972).

The trend in tort law has been to abolish privity of contract (Rozny v. Marnul (1969), 43 Ill. 2d 54) as a prerequisite to establishing a duty. In Rozny; the plaintiffs purchased a house and lot which was described in a plat of an admittedly inaccurate survey prepared by defendant for S&S Builders. In discussing the tort of misrepresentation the court stated:

“This process of adhering to or eliminating the privity requirement has proved to be an unsatisfactory method of establishing the scope of tort liability to third persons. *** To eliminate any uncertainty still remaining after Suvada v. White Motor Co., 32 Ill. 2d 612, 617, we emphasize that lack of direct contractual relationship between the parties is not a defense in a tort action in this jurisdiction. Thus, tort liability will henceforth be measured by the scope of the duty owed rather than the artificial concepts of privity.” Rozny v. Marnul (1969), 43 Ill. 2d 54, 62.

While privity of contract has been abolished in many areas of tort law, the concern is still that liability for negligence not extend to an unlimited and unknown number of potential plaintiffs. In the area of legal malpractice the attorney’s obligations to his client must remain paramount. In such cases the best approach is that the plaintiffs must allege and prove facts demonstrating that they are in the nature of third-party intended beneficiaries of the relationship between the client and the attorney in order to recover in tort. (See Clagett v. Dacy (1980), 47 Md. App. 23, 420 A.2d 1285; R. Mallen & V. Levit, Legal Malpractice sec. 80, at 156-59 (2d ed. 1981); cf. Marker v. Greenberg (Minn. 1981), 313 N.W.2d 4; Brody v. Ruby (Iowa 1978), 267 N.W.2d 902.) By this we mean that to establish a duty owed by the defendant attorney to the nonclient the non-client must allege and prove that the intent of the client to benefit the nonclient third party was the primary or direct purpose of the transaction or relationship. Note, Attorney’s Liability to Third Parties for Malpractice: The Growing Acceptance of Liability in the Absence of Privity, 21 Washburn L.J. 48, 59 (1981).

Analogizing the scope of the duty to the concept of a third-party direct beneficiary serves the purpose of limiting the scope of the duty owed by an attorney to nonclients. The key consideration is the attorney’s acting at the direction of or on behalf of the client to benefit or influence a third party. (Probert & Hendricks, Lawyer Malpractice: Duty Relationships Beyond Contract, 55 Notre Dame Law. 708, 728 (1980).) In Clagett v. Dacy (1980), 47 Md. App. 23, 29, 420 A.2d 1285, 1289, a legal malpractice action, the court stated:

“Whether the action is based upon a contract (express or implied), to which the traditional rules relating to third party beneficiaries may apply, or more on a theory of negligence — the violation of a duty not founded exclusively upon contract — there still must be shown (i.e., alleged and shown) that the plaintiff, if not the direct employer/client of the defendant attorney, is a person or part of a class of persons specifically intended to be the beneficiary of the attorney’s undertaking.”

We conclude that, for a nonclient to succeed in a negligence action against an attorney, he must prove that the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party. Under such proof, recovery may be allowed, provided that the other elements of a negligence cause of action can be proved. Comment, Liability of Lawyers to Third Parties for Professional Negligence in Oregon, 60 Or. L. Rev. 375 (1981).

The analogy to third-party direct beneficiaries to determine the duty owed to a nonclient by an attorney in a negligence action provides for a broader scope of liability than privity, but a narrower scope of liability than the balancing approach used in California. (R. Mallen & V. Levit, Legal Malpractice sec. 81, at 161 (2d ed. 1981).) In Biakanja v. Irving (1958), 49 Cal. 2d 647, 320 P.2d 16, the California Supreme Court held that whether in a specific case the defendant will be liable to a third person not in privity is a matter of policy and involves the balancing of various factors. The factors are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct and the policy of preventing future harm. However, even under the California balancing test, the predominant inquiry has generally resolved to one criterion: Were the services intended to benefit the plaintiff? R. Mallen & V. Levit, Legal Malpractice sec. 80, at 157 (2d ed. 1981).

It would appear that courts are more willing to apply the balancing test to extend an attorney’s duty to non-clients in cases in which the attorney’s representation of his client has essentially been of a nonadversarial nature, such as drafting wills for the benefit of intended beneficiaries thereunder. Garcia v. Borelli (1982), 129 Cal. App. 3d 24, 180 Cal. Rptr. 768; Heyer v. Flaig (1969), 70 Cal. 2d 223, 449 P.2d 161, 74 Cal. Rptr. 225; Biakanja v. Irving (1958), 49 Cal. 2d 647, 320 P.2d 16.

Where a client’s interest is involved in a proceeding that is adversarial in nature, the existence of a duty of the attorney to another person would interfere with the undivided loyalty which the attorney owes his client and would detract from achieving the most advantageous position for his client. (R. Mallen & V. Levit, Legal Malpractice sec. 80, at 159 (2d ed. 1981).) Our code of professional responsibility requires that a lawyer represent his client with undivided fidelity (84 Ill. 2d R. 5—107), and Canon 7 provides that a lawyer should represent a client zealously within the boundaries of the law (84 Ill. 2d Canon 7). In cases of an adversarial nature, in order to create a duty on the part of the attorney to one other than a client, there must be a clear indication that the representation by the attorney is intended to directly confer a benefit upon the third party.

Applying the “intent to directly benefit” test to the facts alleged in the complaint, it is clear that the plaintiffs herein are not in the nature of direct third-party beneficiaries. The attorney was hired primarily for the purpose of obtaining a divorce, property settlement, and custody of the minor children for Loretta Ray, not to represent her children’s interest. The plaintiffs herein are, at best, only incidental beneficiaries in this situation. That George Ray name the children as beneficiaries of the policy cannot be described as the primary reason that Loretta Ray retained the defendant to be her attorney.

Dissolution proceedings are, for the most part, adversarial in nature. To conclude that an attorney representing one of the spouses also owes a legal duty to the children of the two litigants would clearly create conflict-of-interest situations. (R. Mallen & V. Levit, Legal Malpractice sec. 447 (2d ed. 1981).) In this case, a conflict could possibly have arisen between the plaintiffs’ right to support or the proceeds of the insurance policy versus the wife’s interest in a property settlement and maintenance. The same conflict could arise in all dissolution proceedings when minor children’s support issues arise. In this case, if the wife was the beneficiary of the insurance policy in question before the divorce, and the husband insisted on naming the children as beneficiaries, or the court so decreed, then the wife’s interest would conflict with the children’s interest. We refuse to create such a wide range of potential conflicts by imposing such duties upon an attorney in favor of a nonclient, unless the intent to benefit the third party is clearly evident.

We believe a different situation would confront us if this complaint had alleged sufficient facts to show that the defendant had undertaken a duty to notify the insurance company or the husband’s employer of the provision in the divorce decree. In that situation, the attorney may have a duty to exercise reasonable care because his client and the plaintiffs herein could have justifiably relied on that undertaking. Schwartz v. Greenfield, Stein & Weisinger (1977), 90 Misc. 2d 882, 396 N.Y.S.2d 582; Steward v. Sbarro (1976), 142 N.J. Super 581, 362 A.2d 581.

In cases where it appears that the interest of a minor requires separate representation, we note that section 506 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 506) provides for representation of minor children by an attorney and a guardian ad litem. This provision was not in effect when the decree in this case was entered. However, courts have always had the inherent equitable power to appoint a guardian ad litem for minors interested in litigation. (Flynn v. Flynn (1918), 283 Ill. 206; In re Estate of Viehman (1964), 47 Ill. App. 2d 138, 150; 43 C.J.S. Infants sec. 228 (1978). See also, Ill. Ann. Stat., ch. 40, par. 506, Historical and Practice Notes, at 630 (Smith-Hurd 1980); Chambers, The Ambiguous Role Of The Lawyer Representing The Minor In Domestic Relations Litigation, 70 Ill. B.J. 510 (1982).) Courts have always had statutory authority to appoint guardians ad litem for minor parties to litigation. (See Ill. Rev. Stat. 1979, ch. 110, par. 356.) Thus, the rights of the minor children of the parties in this case could have been protected without compromising the undivided loyalty of either spouse’s attorney.

Under the facts as pleaded, we hold that no duty in negligence was owed by the wife’s attorney to his client’s children; hence, no cause of action was stated. In this case, to establish a duty, the plaintiffs must plead and prove that the relationship between the attorney and his client was entered into for the primary and direct benefit of the plaintiffs, plus the other traditional elements of negligence. Also, the allegations of this complaint do not state a cause of action in contract for the reasons heretofore stated.

Accordingly, we conclude that the appellate court properly affirmed the dismissal by the circuit court of Lake County of plaintiffs’ amended complaint for failure to state a cause of action.

Judgment affirmed.

JUSTICE MORAN took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 55881.
    NICK D’ALFONZO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hiram Walker & Sons, Inc., Appellee).

      Opinion filed September 17, 1982.

      Warren E. Danz, P.C., of Peoria, for appellant.
    Goldsworthy & Fifield, of Peoria (Raymond C. Williams, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on August 14, 1979, petitioner, Nick D’Alfonzo, suffered accidental injuries arising out of and in the course of his employment by respondent, Hiram Walker & Sons, Inc., and awarded petitioner worker’s compensation for 14 weeks of temporary total incapacity and 30 weeks of compensation for partial permanent disability to the extent of 6%. On review the Industrial Commission affirmed the award for temporary total incapacity, but found that petitioner had failed to prove that he sustained any permanent disability as a result of the accident and vacated the award for partial permanent disability. On certiorari the circuit court of Peoria County confirmed the decision of the Industrial Commission and petitioner appealed. 73 Ill. 2d R. 302(a).

The sole question presented for review is whether the Commission’s finding that petitioner’s accident on August 14, 1979, did not cause any permanent disability was against the manifest weight of the evidence. Petitioner testified that prior to the occurrence of August 14, 1979, he had experienced pain in his left hip three or four times a year for six to seven years. In March of 1979, after suffering back pains while working, petitioner was referred by a chiropractor to Dr. John McLean, a neurologist. Dr. McLean examined petitioner on June 13, 1979. Dr. McLean’s report to the referring doctor noted that petitioner had complained that “he started having pain in his left hip and left lower extremity which has seemed to persist.” Dr. McLean placed petitioner in the Methodist Medical Center of Illinois for further tests. He was in the hospital from June 14, 1979, to June 22, 1979. Dr. McLean’s “final summary” in the Center’s records stated that he had made a final diagnosis of “Lumbosacral strain. First-degree spondylolisthesis.”

On August 14, 1979, petitioner injured his back while lifting a hose. He was seen by Dr. Palmer, respondent’s plant physician, who referred him to Dr. McLean. He stated that he was now experiencing more pain than prior to the accident. He received heat treatments, medication for pain, and for a period of several weeks wore a back brace prescribed by Dr. Palmer. Petitioner returned to work on a full-time basis on November 26, 1979, and was working for the same department, but in a different capacity.

Dr. Gordon Schultz, who had examined petitioner at petitioner’s counsel’s request, testified at the hearing before the arbitrator. Dr. Schultz stated that X rays showed that petitioner had a condition called pars interarticularis defect. The pars interarticularis is a structure in the lower back which is part of the vertebra. Dr. Schultz explained that this structure acts as a hook on either side which prevents one vertebra from sliding forward on another. Another name for this condition, Dr. Schultz explained, is spondylolysis or pre-spondylolisthesis. “Spondylolysis” is a term used where the defect exists but no slippage has occurred; “spondylolisthesis” is a term used to designate the condition where slippage has occurred. Spondylolisthesis is categorized in degrees: the first degree designates slight slippage, and the higher degrees designate increasing severity of slippage. Dr. Schultz testified that petitioner had first-degree spondylolisthesis. Dr. Schultz expressed the opinion that the spondylolisthesis was not caused by, but was aggravated by, the August 14, 1979, accident. On cross-examination, Dr. Schultz was asked whether Dr. McLean’s diagnosis of first-degree spondylolisthesis prior to the August 14, 1979, accident would indicate that petitioner’s back condition had not changed. Dr. Schultz replied that this was not necessarily true, because the accident could have aggravated the amount of pain experienced by petitioner even though the X rays revealed no change in the position of petitioner’s vertebrae.

The arbitrator found that the injury caused permanent partial disability to the extent of 6%. On review, the Commission made, inter alia, the following findings:

“2. Petitioner had been treated in June, 1979, by Dr. McLean for back pain. Dr. McLean’s records show Petitioner had a history at that time of intermittent pain for 7 years. Dr. McLean found 1st degree spondylolisthesis and prescribed no heavy lifting or bending.
3. After his injury of August 14, 1979, Petitioner returned to Dr. McLean. On October 31, 1979 Dr. McLean reported Petitioner had 1st degree spondylolisthesis. He found flexion, reflexes and straight leg raising normal. He also stated Petitioner is prone to back injury.
Based on Dr. McLean’s records, the Commission finds Petitioner had a temporary exacerbation of his low back condition, but has failed to prove that he sustained any permanent disability as a result of the accident of August 14,1979.”

Petitioner argues that the decision of the Industrial Commission is against the manifest weight of the evidence. Petitioner argues, too, that Dr. Schultz was in the best position to evaluate the permanency of petitioner’s condition since he examined petitioner after he had returned to work. Petitioner also notes that the arbitrator heard the “live” testimony of Dr. Schultz and thus was in the best position to evaluate the credibility of his testimony. Respondent contends that no deterioration of petitioner’s condition had occurred. Respondent notes that petitioner has returned to basically the same work he was doing prior to the accident and, at the time of the hearing on review, was not seeing a doctor and was not on medication. Respondent argues that even if petitioner’s condition is worse, there is insufficient evidence to show that the August 14, 1979, injury proximately caused this aggravated condition.

According to Dr. Schultz’s testimony, since the X rays showed no greater degree of slippage in the vertebrae, whether petitioner’s condition had worsened depended upon whether the pain caused by the condition had increased. While petitioner testified that his pain had become constant after the accident and was more severe, he also testified that he was no longer taking pain pills and was working full time in the same department in which he had worked before the accident. Dr. McLean’s final summary to the Methodist Medical Center of Illinois indicated that petitioner had stated that he was experiencing more persistent pain than he had in previous years due to an injury sustained in March of that year. The testimony is conflicting on the question of whether the accident caused a permanent increase in the amount of pain suffered by petitioner, and different inferences may be drawn from the testimony of the various witnesses. On this record we cannot say that the finding of the Industrial Commission that petitioner had failed to prove that he sustained any permanent disability as a result of the August 14, 1979, accident was against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Peoria County is affirmed. Elliott v. Industrial Com. (1982), 91 Ill. 2d 100, 107-08.

Judgment affirmed.


author: JUSTICE MORAN

text:
    (No. 55460.
    CATERPILLAR TRACTOR COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stephan Lee, Appellee).

      Opinion filed September 17, 1982.

      Richard T. Buck and James B. Harvey, of Joliet (McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of counsel), for appellant.
    Thomas M. Monahan, of Joliet, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

In this workmen’s compensation case, the arbitrator found that plaintiff, Stephan Lee, sustained accidental injuries arising out of and in the course of his employment on February 3, 1977. He awarded plaintiff $194.40 per week for 103 weeks due to his temporary total incapacity for work and $194.40 per week for an additional 50 weeks resulting from a 10% permanent partial disability. On review, the Industrial Commission likewise found that plaintiff sustained accidental injuries arising out of and in the course of employment on February 3, 1977. It concluded that the condition was temporary and had not yet reached a permanent state. Accordingly, it awarded plaintiff $194.40 per week for 139% weeks of temporary total incapacity for work under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) and stated that the award should not bar a subsequent determination of additional compensation for temporary total disability or for permanent disability. The Commission also awarded plaintiff additional medical expenses under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)). The circuit court of Will County confirmed the Commission’s decision, finding it was not contrary to the manifest weight of the evidence.

There is no dispute that plaintiff suffers from rheumatoid arthritis which was not caused by his employment. The sole issue is whether plaintiff’s work-related incident was a contributing factor to his present disabled condition.

Plaintiff, who was 24 years old at the time of the incident, was employed as a milling machine operator for defendant, Caterpillar Tractor Company. Plaintiff’s employment entailed his moving castings, weighing from five to 95 pounds, up to a milling machine. The heavier castings were lifted with the aid of an air hoist. On February 3, 1977, while bending over a transporting tub and attempting to move a 90-pound casting in position for the air hoist, plaintiff felt a “stabbing pain” in his lower back. Plaintiff testified that he had a very difficult time standing up and that he could not straighten his back. Plaintiff sat down for approximately 45 minutes, after which time he was unable to continue work. He reported this to his company foreman and went home. Plaintiff stated that he had great difficulty walking from the building to his car and experienced severe pain on the way home. The pain persisted throughout the night, and the following morning plaintiff went to the emergency room of Silver Cross Hospital. Plaintiff told the emergency room doctor of the previous night’s injury at work and was treated as an outpatient. Plaintiff testified that the pain became more severe over the weekend. He returned to work the following Monday, February 7, at which time defendant’s medical director, Dr. L. C. Powell, examined plaintiff. Plaintiff was put on light duty that day, but that work caused the back pain to increase. The next day, at the start of work, plaintiff’s foreman informed him there was no light work to do and told him to return to the company medical center, where he was advised to see a specialist.

Plaintiff then engaged Dr. Douglas J. Adelmann, an orthopedic surgeon, who administered cortisone injections and prescribed other medication and a lumbar corset. Plaintiff continued to receive treatment from Dr. Adelmann for the following five months. During this period, on March 8, plaintiff received a “Return to Work Pass” from Dr. Adelmann. However, it was rejected by Dr. Powell. In early April, unrelated to his employment, plaintiff changed a flat tire, which caused his back to hurt “a slight amount more.” On April 22, plaintiff received another back-to-work pass from Dr. Adelmann with restrictions on lifting and bending. That pass was also rejected by Dr. Powell pending plaintiff’s job reassignment.

In July, when plaintiff continued to experience back pains, he was hospitalized by Dr. Adelmann. Plaintiff received medication and underwent traction. The pain did not subside, and in August plaintiff was admitted to Marianjoy Rehabilitation Clinic, where he received medication, had physical therapy, and underwent tests. A medical history taken at the clinic stated that plaintiff had suffered back pains on and off for three previous years and that he had curvature of the spine. There was no radiation into plaintiff’s arms and legs. One test revealed that plaintiff had ankylosing spondylitis involving mainly the thoracic spine. After approximately three weeks, plaintiff was discharged, whereupon he continued treatment as an outpatient. For about four weeks, plaintiff went to the clinic every day for four hours of physical therapy; the following month he went three times a week and, thereafter, once a month until December 1978. During some of this time, plaintiff wore a “transit nerve stimulator” consisting of two probes over the lower back that pulsate an electric current to ease pain. Plaintiff subsequently returned to Dr. Adelmann, to whom he indicated that his back continued to hurt and that he could not obtain relief from pain. Plaintiff also was treated by a chiropractor and was examined by another orthopedic surgeon, Dr. Curtis L. Rentschler.

Plaintiff testified that, when he began work for defendant, he passed a company physical examination. He also stated that in the three years he was employed by defendant before the accident he twice hurt his back at work, but never went to the hospital or lost any time from work from those incidents. Plaintiff declared that at the time of the hearing he could not walk, sit, or stand for a prolonged period of time, nor bend or lift. Except for his attempt to work on February 7, 1977, plaintiff has not returned to his employment with defendant.

Dr. Adelmann testified that plaintiff has a dorsal kyphotic deformity. He stated that on April 22, 1977, he attempted to send plaintiff back to work with restrictions on bending, lifting, or squatting, which defendant was apparently unable to accommodate. He testified that when he last saw plaintiff on September 13, 1979, plaintiff was still complaining of pain in the same spot of his back as when he originally saw him on February 15, 1977. Dr. Adelmann testified that plaintiff had also developed swelling of the finger joints and sclerosis of his sacroiliac joint. He also stated that plaintiff had limited motion in bending and restricted internal revolution of the hips. His diagnosis was that plaintiff suffers from ankylosing spondylitis, a type of rheumatoid arthritis that stiffens the joints and shows a predilection toward the central portion of the body.

Dr. Adelmann testified that rheumatic arthritis is not caused by a traumatic event, but that the kind of work plaintiff was doing could “aggravate” a preexisting condition. On re-cross-examination, the witness stated that, more specifically, plaintiff’s type of work would not aggravate the disease but would cause pain. He also testified that, in his opinion, plaintiff is totally disabled from his regular occupation, and that the possibility of any future gainful work depends upon education, rehabilitation, and availability of light work.

Dr. Rentschler, in an evidence deposition, testified that he first examined plaintiff on February 6, 1978. He stated that plaintiff had a dorsal kyphosis, or curvature of the spine, relative to a juvenile epiphysitis. Upon a subsequent examination on September 29, 1978, plaintiff continued to experience the same back pain and loss of back function. Based on the tests performed at Marian-joy Clinic along with his own examination, Dr. Rentschler stated that the ankylosing spondylitis was one of the reasons for the disability from which plaintiff is suffering, although he was somewhat equivocal about using the term ankylosing, which is a further state of development. He testified, in response to a hypothetical question, that a work incident, like the one plaintiff experienced on February 3, 1977, was the precipitating incident that set off the chain of events resulting in his present state of disability. On cross-examination, Dr. Rentschler testified that rheumatoid arthritis is not caused by trauma or injury, but denied that an injury to the area could not aggravate it. According to Dr. Rentschler, a blow to the area could “precipitate” the rheumatoid arthritis in that it could make the condition apparent, i.e., bring it from a subclinical to a clinical phase. He stated that, in his opinion, plaintiff’s present condition could be caused by a combination of the arthritic condition and the injury.

Dr. Rentschler also testified that he expects plaintiff’s condition to continue and it would be unreasonable to send him back to work as a millwright. He declared that the type of work plaintiff could perform would involve very little lifting, bending or remaining in one position for a long time. No medical evidence was introduced by defendant.

Defendant argues that plaintiff’s condition is due to rheumatoid arthritis, which was neither caused nor aggravated by plaintiff’s employment. This court has repeatedly held that a preexisting condition does not prevent recovery under the Act if that condition was aggravated or accelerated by the claimant’s employment. (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 177; Brooks v. Industrial Com. (1979), 78 Ill. 2d 150, 155; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) The sole limitation to this general rule denies recovery where the employee’s health has so deteriorated that any normal daily activity is an overexertion, or where the activity engaged in presented risks no greater than those to which the general public is exposed. Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 177-78; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.

The claimant’s injury need not be the sole factor that aggravates a preexisting condition, so long as it is a factor that contributes to the disability. (Azzarelli Construction Co. v. Industrial Com. (1981), 84 Ill. 2d 262, 267; Brooks v. Industrial Com. (1979), 78 Ill. 2d 150, 155. See General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432, 434.) In addition, the question of whether a claimant’s disability is attributable to a degenerative condition or, because of an accident, to an aggravation of a preexisting condition, is a question of fact to be decided by the Industrial Commission. (Caradco Window & Door v. Industrial Com. (1981), 86 Ill. 2d 92, 99; Azzarelli Construction Co. v. Industrial Com. (1981), 84 Ill. 2d 262, 266; Memorial Medical Center v. Industrial Com. (1978), 72 Ill. 2d 275, 280-81, citing County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17-18.) Finally, to the extent that the medical testimony might be construed as conflicting, it is well established that resolution of such conflicts falls within the province of the Commission, and its findings will not be reversed unless contrary to the manifest weight of the evidence. Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 175; Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 178; Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 159, 163.

Here, plaintiff testified that, although he had some prior accidents involving his back, they did not cause him to lose any time from work. It was only after the incident involving moving the 90-pound casting on February 3, 1977, that plaintiff experienced back pain that prevented him from returning to work for defendant. As recounted above, Dr. Adelmann testified that, although plaintiff’s employment could not aggravate the disease itself, it could have caused the pain symptoms to occur. Dr. Rentschler, as discussed earlier, testified that plaintiff’s present condition was due to a combination of the rheumatoid arthritis and an injury like that suffered by plaintiff. For example, after the witness stated that an injury could bring the arthritis from a subclinical to a clinical level, the following exchange occurred between defendant’s attorney and Dr. Rentschler:

“ATTORNEY: But am I correct that it (the rheumatoid arthritis) can not be aggravated or made to be more — the arthritis is the arthritis. The blow doesn’t make the arthritis more, does it doctor?
DOCTOR: No, that’s not correct either. There are certain relationships that exist, then, between an injury and an arthritis. In other words, the patient who’s got an arthritic condition, who is injured, of course doesn’t heal as readily.
ATTORNEY: Yes.
DOCTOR: Okay. The persistency of findings, and of course with the persistency over a length of time, and the muscles being tight and scarring occuring [sic] then we enter into a permanency.
ATTORNEY: Caused by the arthritis or caused by the injury, doctor?
DOCTOR: Caused by the combination.”

Dr. Rentschler also testified that an incident such as the one that occurred on February 3, 1977, could have precipitated the chain of events resulting in plaintiff’s present disability.

The evidence sufficiently establishes that the work-related incident, combined with the rheumatoid arthritis, is responsible for plaintiff’s inability to work and is a causative factor in plaintiff’s present disabled condition. Accordingly, the decision of the Industrial Commission is not contrary to the manifest weight of the evidence and will not be disturbed.

For the above reasons, the judgment of the circuit court of Will County is affirmed.

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 55488.
    JOSEPHINE E. FRIDDLE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (The City of Wilmington, Appellee).

      Opinion filed September 17, 1982.

      J. William Stefan, of La Grange, for appellant.
    Frank H. Masters, Jr., of Masters, Brumund, Belom, Jacobs, Wright, Babcock & Stukel (Sidney Z. Karasik, of counsel), for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Melvin A. Friddle was employed as a part-time volunteer fireman for the city of Wilmington. On February 5, 1978, he sustained fatal injuries arising out of and in the course of his employment as a volunteer fireman. The arbitrator entered an award of compensation to the plaintiff, Mrs. Friddle, in accordance with section 10(e) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.10(e)). The Industrial Commission affirmed the award as computed, and the circuit court of Will County confirmed the decision of the Industrial Commission. The plaintiff appealed to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

The issue before us is whether section 10(e) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.10(e)) was properly applied by the Industrial Commission.

Section 7(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)) addresses the amount of compensation to be paid for an accidental injury that results in an employee’s death. It states that the weekly compensation rate is computed in accordance with subparagraph 2 of section 8(b) (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)). Section 8(b)(2) provides that the basic benefit should equal two-thirds (662/3%) of that employee’s average weekly wage computed in accordance with section 10 (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)(2)). Section 10 provided in part:

“The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows:
(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.
(b) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.
(c) If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location, (or if that be impracticable, of neighboring employments of the same kind) have earned during such period.
(d) As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as 300 times the average daily earnings in such computation.
(e) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, provided the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200.
(f) In the case of injured employees who earn either no wage or less than the earnings of adult day laborers in the same line of employment in that locality, the yearly wage shall be reckoned according to the average annual earnings of adults of the same class in the same (or if that is impracticable, then of neighboring) employments.” Ill. Rev. Stat. 1977, ch. 48, par. 138.10.

In computing the earnings base, paragraphs (d), (e) and (f) are used in determining the annual earnings only if paragraphs (a) or (c) do not apply. Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, 164; see Ruda v. Industrial Board (1918), 283 Ill. 550.

In Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, the claimant was employed as a full-time welder by General Motors and drove a taxi for the Yellow Cab Company on weekends. The Industrial Commission awarded benefits based only on the income derived from his part-time job as a taxi driver. While the circuit court upheld the award, this court reversed the decision, holding that the claimant’s compensation should have been based on the earnings he would have received had he been employed full time as a taxi driver. The court indicated, in interpreting section 10 in Vaught, that paragraph (a) did not apply because, although the claimant there had been employed during the entire preceding year, he had not been employed “continuously” or on a full-time basis. 52 Ill. 2d 158, 165.

In the case at hand the decedent was employed full time as a driving instructor for Ryder Systems, Inc., and had not been employed “continuously” by the Wilmington fire department. Therefore, the method of determining a wage base as provided for in paragraph (a) does not apply. In Vaught, the court said that paragraph (c) was applicable to individuals who had not been employed for a full year and not to employees like the claimant here, who had been employed on a part-time basis for more than a full year. (52 Ill. 2d 158, 165.) In the instant case the decedent had been a volunteer fireman in Wilmington for IOV2 years prior to his death. Thus paragraph (c) does not apply.

Paragraph (d) refers to a situation in which it is customary for an employee to work throughout all of the working days of the year. A method is then provided to arrive at a rate of compensation when it is not otherwise determinable. Ruda v. Industrial Board (1918), 283 Ill. 550, 554.

Paragraph (e) protects the part-time employee “where the working days are intermittent” (Ruda v. Industrial Board (1918), 283 Ill. 550, 554; K. & R. Delivery v. Industrial Com. (1957), 11 Ill. 2d 441) and the employment is temporary (Vaught v. Industrial Com. (1972), 52 Ill. 2d 158; K. & R. Delivery v. Industrial Com. (1957), 11 Ill. 2d 441, 446). One aim of paragraph (e) is to provide an earnings base for seasonal employees such as construction workers. 2 T. Angerstein, Illinois Workmen’s Compensation sec. 1799, at 373 (rev. ed. 1952).

In K. & R. Delivery v. Industrial Com. (1957), 11 Ill. 2d 441, the court applied section 10(e) to a worker regularly employed as a full-time fireman who worked sporadically for a delivery service on his off days. He was employed temporarily, at intermittent intervals, when the regular drivers were unable to handle large bulky deliveries alone. The court determined that the employment of the claimant in K. & R. Delivery “was of such a nature to warrant the sole application of section 10(e).” 11 Ill. 2d 441, 446.

In Vaught v. Industrial Com. the court found that it was not confronted with a situation involving “temporary part-time employment, as defined in K. & R. Delivery” and that section 10(e) did not apply. “[T]he work [of the part-time taxicab driver] was regular on weekends; it was not intermittent; it existed throughout the year ***.” 52 Ill. 2d 158, 167.

In the case at bar while the status of the employee was that of a volunteer fireman, uncontradicted testimony clearly established that the decedent worked regularly, two to three hours a day, on Wilmington fire department business, in addition to the emergency fire calls to which he responded (180 in the year prior to his death). The decedent was in charge of the maintenance of the fire department equipment, was involved in preplanning (locating target areas that might present special fire problems) as well as auto extrication, water rescue training, and participation in Mutual Aid Association meetings.

Prior to November 1977, members of the Wilmington fire department were paid on a per-call basis at $5 per call. After November 1977, a maximum monthly rate of $55 was established, which encompassed payment for responding to the calls and maintenance on the fire equipment, as well as attendance at training sessions or fire drills. The defendant city of Wilmington contends that the instant facts are unlike Vaught because the Industrial Commission found as fact that the decedent’s work was sporadic and intermittent. That appears to be inaccurate. The Commission rather misapplied section 10(e) to this part-time employee who worked regularly as a captain in the Wilmington fire department. The decedent did not simply work on the occasions when he was called out in response to a fire alarm. He was compensated for duties that included daily work at the fire station on fire department business.

Intermittent employment more appropriately describes the work of a free-lance practical nurse who is employed occasionally in a temporary capacity or a general construction worker hired on a temporary basis when a particular job becomes available, or such seasonal employment as cotton picking, fruit picking, and general farm work or forestry. See generally 2 A. Larson, Workmen’s Compensation sec. 60.22 (1981).

The plaintiff points out that the legislature amended section 10 in 1980 to expressly provide a basis for computing income benefits for volunteer firemen based upon the average weekly wage in their regular employment. It is the plaintiff’s contention that had the amendment been in effect on the date of the filing of this claim, section 10, as amended, would have controlled. However, the plaintiff’s assertion is irrelevant because it is agreed that the 1980 amendment to section 10(e) was not in effect at the time this claim was filed. It is well established that claims of injured workmen for compensation under the Workmen’s Compensation Act are not affected by changes in the rate of compensation after an accident and filing of a claim. Grigsby v. Industrial Com. (1979), 76 Ill. 2d 528, 532-33. See Stanswsky v. Industrial Com. (1931), 344 Ill. 436, 438-39, citing to Cahill’s Stat. 1929, ch. 131, par. 4.

Prior to the 1980 amendment to section 10(e) all earnings from concurrent employments were considered in calculating the earnings base if the employments were similar or related. E.g., Puttkammer v. Industrial Com. (1939), 371 Ill. 497 (combining earnings from a workman’s jobs driving a coal company truck and driving trucks for a paving company in computing his earnings base); Chicago & Interurban Traction Co. v. Industrial Board (1917), 282 Ill. 230 (death benefits calculated on basis of total earnings received from two traction companies in his employment as a motorman); Krawiec v. Industrial Com. (1939), 372 Ill. 560 (compensation based upon aggregate earnings paid by two employers where a night watchman was injured on the property of one); Sinclair Refining Co. v. Industrial Com. (1925), 317 Ill. 541 (compensation based upon employee’s actual earnings in the previous year although he had been paid for his work as a plumber by a variety of employers).

The decedent’s full-time employment as a driving instructor with Ryder Systems, Inc., was not similar or related to the character of his duties as a volunteer fireman. It was therefore proper for the Commission to exclude any earnings the decedent might have received from his full-time employment as a driving instructor in determining the proper wage base for purposes of compensation.

It is clear that it is the function of the Industrial Commission to resolve factual questions, and we will not set aside a finding of fact by the Commission unless it is contrary to the manifest weight of the evidence. (Motor Wheel Corp. v. Industrial Com. (1979), 75 Ill. 2d 230, 236-37; Keystone Steel & Wire Co. v. Industrial Com. (1978), 72 Ill. 2d 474, 480.) However when there is no dispute as to the facts and there are no conflicting inferences to be drawn from those facts, we are presented with a question of law. The facts are uncontested here; the issue is a matter of law. Wright v. Industrial Com. (1975), 62 Ill. 2d 65, 71; Malco v. Industrial Com. (1976), 65 Ill. 2d 426, 431.

We conclude that because the decedent worked regularly throughout the year as a volunteer fireman, section 10(e) (Ill. Rev. Stat. 1977, ch. 48, par. 138.10(e)) is not applicable. Accordingly, we reverse the judgment of the circuit court of Will County and remand the cause to the Industrial Commission for a reevaluation of the decedent’s weekly wage basis.

The plaintiff suggested to the Commission that because Joliet is the closest city to Wilmington with a full-time fire department the annual salary for a fire captain in Joliet should serve as a fair basis upon which to determine the benefits payable as the proper compensation rate. We take judicial notice of the disparate populations of Wilmington and Joliet (1970: 4,335 versus 78,827; 1980: 4,424 versus 77,956 (1980 Census of Population and Housing, Advance Reports, PHC80 — V—15, Illinois)). We therefore direct the Commission to consider other communities that employ one or more full-time firemen where the population is commensurate with the city of Wilmington’s in finding an appropriate wage base.

Circuit court reversed; cause remanded, with directions.


author: JUSTICE WARD

text:
    (No. 55401.

      In re JOHN GRIFFIN, a Minor, Appellant (The People of the State of Illinois, Appellee).

      Opinion filed September 17, 1982.

    James J. Doherty, Public Defender, of Chicago (John Thomas Moran and Timothy P. O’Neill, Assistant Public Defenders, and Mary A. Lambert, law student, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Richard T. Sikes, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WARD

delivered the opinion of the court:

John Griffin was adjudicated a delinquent and a ward of the court in the circuit court of Cook County. He was 12 years old at the time of adjudication, but had turned 13 before a dispositional order was entered. The disposition decided upon by the court was commitment to the Department of Corrections pursuant to section 5— 2(1)(a)(5) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 705 — 2(1)(a)(5)), which provides for such commitment of a delinquent minor “if he is 13 years of age or older ***.” The appellate court, holding that the statutory age requirement was satisfied because Griffin had turned 13 prior to the entry of the dispositional order, affirmed (97 Ill. App. 3d 1030), and we granted the minor leave to appeal under Rule 315 (73 Ill. 2d R. 315).

The petition for adjudication of wardship filed against John Griffin alleged that on September 21, 1978, he committed armed robbery and aggravated battery. On January 3, 1979, the court found that he had committed both of the acts and set a dispositional hearing for January 24. At the hearing, a probation officer reported Griffin’s extensive juvenile record to the court and explained the possibility of placing him in a “Tri-Agency Program” at a mental health center in Tinley Park. The officer said that the mental health center requested an updated clinical evaluation, and by agreement the matter was continued to February 14.

At the February 14 hearing the probation officer stated that the Tri-Agency Program had accepted Griffin, and the officer recommended commitment to the Department of Children and Family Services (the DCFS) for placement in the Tri-Agency Program. The program could not accept Griffin, though, until he turned 13, which would be on March 10. By agreement the court continued the hearing until March 14, four days after Griffin’s birthday. The court warned the parties at the February hearing, however, of the possibility that it might commit Griffin to the Department of Corrections at the next hearing. The court said, “What makes you think I am going to commit him to DCFS? I may commit him to the Department of Corrections. Everyone is assuming he is going to be released to DCFS. By agreement of the parties, this matter will be continued for a resumption of the dispositional hearing.”

On March 14, as stated, the court decided that the appropriate disposition was commitment to the Department of Corrections under section 5 — 2(l)(a)(5) of the Juvenile Court Act. The relevant part of the section provides that as one type of dispositional order in a delinquency proceeding:

“A minor found to be a delinquent * * * may be (5) committed to the Department of Corrections *** if he is 13 years of age or older, provided that minors less than 13 years of age may be committed to the Department of Corrections until July 1, 1973. Commitment to the Department of Corrections, Juvenile Division, shall be made only if a term of incarceration is permitted by law for adults found guilty of the offense for which the minor was adjudicated delinquent.” Ill. Rev. Stat. 1977, ch. 37, par. 705—2(1)(a)(5).

The question here is at what stage must the minor become 13 years of age in order to be eligible for commitment to the Department of Corrections. The appellate court decided that as long as the minor is 13 years at the time of the dispositional order he may be committed. 97 Ill. App. 3d 1030, 1032.

In support of the appellate court’s decision, the People argue that that construction of the statute serves the purposes underlying the Juvenile Court Act: to provide for the best interests of the minor and the community. It serves those purposes, the People maintain, because it permits the court to enter a dispositional order suited to the minor’s condition at the time of the disposition. The People stress that dispositional orders in juvenile proceedings are not penal sanctions, but are rehabilitative measures.

Griffin, on the other hand, would read the statute as providing that the only minors eligible for the Department of Corrections are those who were 13 years when they committed the offenses upon which the findings of delinquency are based. The appellate court’s interpretation could not have been intended, he says, because it makes eligibility for commitment to the Department of Corrections dependent upon factors beyond the minor’s control, such as prosecutional delay and the condition of a court’s calendar. It creates too arbitrary a distinction, he says, and would “throw a pall of uncertainty” over rehabilitation planning for minors adjudged wards of the court prior to their 13th birthdays.

He points out that, under the Criminal Code of 1961, whether a person is at least 13 years at the time of the conduct determines whether he can be held criminally responsible for his conduct. (Ill. Rev. Stat. 1977, ch. 38, par. 6—1.) He argues that a legislative intent to establish a similar rule for commitment to the Department of Corrections is obvious, because, under the section in question, a minor may be so committed only if his offense would permit the incarceration of an adult.

Alternatively, Griffin contends that the age requirement applies to the time the minor is found to be a delinquent. Using that stage as a benchmark, he maintains, would facilitate immediate rehabilitation planning upon a finding of delinquency and would not tempt prosecutors to delay disposition until the minor attains 13 years.

We judge that the appellate court’s construction of the statute is correct. Whether the legislative intention found through that interpretation represents the best judgment for determining a minor’s eligibility for commitment to the Department of Corrections may be debated, as the parties have done. Our role in construing the statute, however, obviously is not to decide what the legislative design should be. The judicial function in construing a statute is to give effect to the intention of the legislature. (People v. Beam (1979), 74 Ill. 2d 240, 242; People v. Scott (1974), 57 Ill. 2d 353, 358.) We consider that it is clear that the legislature’s concern was with the minor’s age at the stage of disposition.

As we have noted, the statute provides that, in a dispositional order, a delinquent minor may be “committed to the Department of Corrections *** if he is 13 years of age or older ***.” (Ill. Rev. Stat. 1977, ch. 37, par. 705-2(1)(a)(5).) We consider that the language of the section shows that the only requirement is that the minor be 13 years at the time the order of commitment is entered.

We do not read a qualification into that language and expression of legislative intention. There are parts of the Juvenile Court Act in which the legislature has determined that a minor’s age at the time of the prohibited conduct will determine the applicability of certain provisions. One section expressly provides that whether a minor who engages in prohibited conduct is a delinquent is determined by his age at the time of the conduct. (Ill. Rev. Stat. 1977, ch. 37, par. 702—2.) The sections providing that a minor may be transferred from juvenile court for prosecution as an adult contain express language making transfer dependent upon the minor’s age at the time he committed the offense. (Ill. Rev. Stat. 1977, ch. 37, pars. 702-7(1), (3), (4), (5).) One can reasonably assume that if the legislature had intended in the section we are examining that the minor’s age at a stage other than the disposition stage was to be controlling, it would have expressed that intent as it did in the sections cited above. See Peoria Savings & Loan Association v. Jefferson Trust & Savings Bank (1980), 81 Ill. 2d 461, 469-70 (the legislature’s use of certain language in some sections of a statute, but differing language in others, indicates that different results were intended).

There is no merit to the contention that our interpretation is so arbitrary that the legislature could not have intended it. The interpretation is no more arbitrary than the statutory declaration that a minor’s 13th birthday endows him with a “criminal capacity,” or Griffin’s suggestion that eligibility for commitment should depend upon the precise date he is found to be delinquent. Griffin’s complaint is actually against the legislature’s plain and unambiguous language expressing the legislative intent.

The argument that our holding will promote prosecutorial delays that are unnecessary, contrived, and in bad faith underestimates the abilities and experience of trial courts. An adequate -safeguard against such delays, of course, will be the trial court’s sophisticated scrutiny of the ground for requests for continuance. The Act provides for adjournment and continuance of a dispositional hearing “for a reasonable period to receive reports or other evidence ***.” (Ill. Rev. Stat. 1977, ch. 37, par. 705-1(4).) The People concede that it would be improper to permit a prosecutor to continue a dispositional hearing simply to allow a minor to qualify in age for commitment to the Department of Corrections. We can deal with problems of this character when and if they arise.

We would observe, too, that the legislature recently has added another safeguard against extended delays. Under an amendment to section 5 — 1 of the Act (Ill. Rev. Stat. 1981, ch. 37, par. 705—1 (eff. Jan. 1, 1980)), where a minor is detained pending disposition, the adjournment and continuance of the dispositional hearing beyond 30 days will result in the minor’s release from detention.

It is to be noted that our holding does not require a court to commit a minor who turns 13 prior to disposition to the Department of Corrections. We hold only that such a disposition is available under the Act. The statute says a minor “may” be committed to the Department of Corrections. Commitment to the Department of Corrections is only one of the possible dispositions for a delinquent minor who has been adjudged a ward of the court. Ill. Rev. Stat. 1977, ch. 37, par. 705—2.

Such commitment to the Department of Corrections will be ordered for a minor only if the court finds that “(a) his parents, guardian or legal custodian are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and (b) the best interests of the minor and the public will not be served by [alternate] placement [as provided in the Act].” (Ill. Rev. Stat. 1977, ch. 37, par. 705—10(1).) The court must state for the record why it decided to so commit the minor (Ill. Rev. Stat. 1977, ch. 37, par. 705—1(5)), and its choice of that disposition is subject to appellate scrutiny for abuse of discretion. In re Napier (1980), 83 Ill. App. 3d 503; In re Young (1978), 63 Ill. App. 3d 897.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: JUSTICE UNDERWOOD

text:
    (No. 56126.

      In re JOHN OTTO VOGEL, Attorney, Respondent.

      Opinion filed September 17, 1982.

    MORAN, J., took no part.

      Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    John O. Vogel, of West Chicago, pro se.

   JUSTICE UNDERWOOD

delivered the opinion of the court:

Pursuant to our rules establishing the Attorney Registration and Disciplinary Commission (73 Ill. 2d Rules 751 through 771), its administrator filed a complaint against respondent, John Otto Vogel. The complaint alleged that respondent had represented Arthur Hardisty from 1964 to 1976, and that during those years respondent was guilty of overreaching his client in violation of DR 5 — 101(A) of the Illinois Code of Professional Responsibility (Illinois State Bar Association 1970). The Hearing Board agreed and recommended three months’ suspension from the practice of law. The Review Board, however, found the complaint should be dismissed. We subsequently allowed the Administrator’s motion to be permitted to file in this court exceptions to the Review Board’s report. 73 Ill. 2d R. 753(e).

The evidence established that respondent first became acquainted with Arthur Hardisty and his wife, Agnes, in 1964 when respondent had successfully represented Agnes in a criminal matter. In 1965 respondent drafted wills for both Hardistys, neither of whom included him as a beneficiary. Those wills apparently left nothing to any of the three Hardisty children, one of whom does not appear to have been acknowledged by Arthur. Agnes died in 1967. On September 4, 1968, respondent wrote Arthur Hardisty giving him respondent’s new office address and telephone number and indicating a desire to meet him for lunch and discuss an addition to his will. They met shortly thereafter. Respondent testified that he and Russell Swanson, a Hardisty family friend, had been trying to effect a reconciliation between Arthur and his family, and that respondent had suggested Arthur leave something to the family in his will. The sons and Arthur did not have a good relationship, and respondent testified that he had understood that, because Agnes had owned a bar or been a bartender, Arthur’s sons looked down on her and had not been in Arthur’s house after their marriage. At the luncheon meeting Arthur gave respondent a memorandum prepared by Arthur, telling respondent, “That’s what I want you to do.” The handwritten memorandum provided, “you are to take ten thousand for yourself,” and gave other directions, including “seeing that Christmas blanks [sic] are put on our graves for five years” and putting the pets to sleep. A postscript following the signature stated “you are to look after my afairs [sic] now and bill me later.”

Respondent further testified that he told Arthur that, since respondent was a beneficiary, he could not prepare the will and would have to get another lawyer to do so. Subsequently a will and a trust instrument were drafted by Fredrick Henzi, a lawyer with whom respondent shared office space. Respondent testified that he made no suggestions to Arthur or Henzi regarding himself, but “had a pretty good idea” what was going into the will and trust. The trust, as executed on September 17, 1968, named attorney Henzi and the Gary-Wheaton bank as trustees. It was designated by the bank as trust No. 950, and its total corpus consisted of $10. Upon Arthur’s death the pets were to be disposed of by respondent; a son, Albert, was to be paid up to $5,000 for work performed by him as indicated by a record, the location of which had been disclosed to respondent; and other directions similar to those in the original memorandum were given. The residue was to be divided equally between Russell Swanson and respondent.

The executed will, including funeral instructions, was left with respondent to be delivered by him to the executor. It specifically disinherited the children, appointed Russell Swanson as executor and respondent as his successor, directed that attorney Henzi be employed by the executor, provided for the payment of certain expenses, and devised and bequeathed the remainder of the property to the trustees to be handled as therein provided.

Respondent further testified that he managed, under what appears to have been a very informal arrangement, Arthur’s residence property, which included several rental units. His compensation apparently was 10% of the rental collected by him. Respondent had on at least one occasion attempted to arrange a sale of this property for $100,000 with the objective of moving Arthur to West Virginia or Virginia, where he talked of having relatives. This idea was apparently prompted by the fact that Arthur was on one occasion, respondent said, found lying in the snow after drinking too much wine.

In 1973 respondent prepared for Arthur a will naming respondent executor and Russell Swanson successor, a reversal of their roles under the 1968 will. It was never executed. About the same time, respondent testified, Arthur became unhappy with Russell Swanson because of a drinking problem the latter was thought to have, and marital difficulties which had developed between the Swansons. Arthur, respondent said, wanted to change the terms of the trust and requested him to draft the changes. As executed, the amendment eliminated Albert Hardisty as a beneficiary, added $5,000 for Nancy Schramm, respondent’s secretary, and substituted a $5,000 gift to Russell Swanson for the 50% of the residue originally given him; respondent became the sole residuary beneficiary. Respondent testified he had discussed with Arthur “in general” why he, as a beneficiary, should not draft the amendments and that Arthur should go to attorney Henzi, but Arthur had not wanted to do so. At that time respondent and Henzi were partners. After Arthur had executed the amendments respondent sent them to the trustee bank, which, he testified, thereafter lost them.

In 1974 a will prepared by attorney Gordon Bunge was executed by Arthur. It provided that, after payment of expenses the entire estate was to be equally divided among Russell Swanson, Jeanne L. Swanson, Albert Hardisty, Sr. (a son), and respondent and appointed the son executor with Jeanne Swanson as his successor. Respondent knew nothing of the execution of this will until June 1976, when Arthur told him he had destroyed this will by cutting it up with scissors.

On May 27, 1976, respondent testified, Jeanne Swanson brought Arthur to respondent’s office. Arthur said he wanted to put the residence real estate in the trust. When respondent asked “why” he was told by Arthur that it was none of his business. Respondent did not tell Arthur he should consult independent counsel, and, because Fredrick Henzi was now a judge, respondent prepared and Arthur executed a deed conveying the property to the trust, together with an amendment of the trust terms. Besides updating the pet and cash provisions the amendment deleted from the trust all reference to former attorney Henzi and transferred the real estate to the trust.

On June 3, 1976, Arthur executed a will prepared by respondent which specifically disinherited the children, appointed respondent executor and Russell Swanson successor executor, directed that Carl Kuhn serve as attorney for the executor, indicated funeral instructions were in respondent’s possession and that the pets were to be delivered to him, and gave all the residue to trust No. 950.

At the time of execution of this will, respondent stated that Arthur Hardisty was 84 years of age, suffering from a slight stroke, incontinent and using a urine bag, was in and out of the hospital, used a cane and “was going downhill” physically. Respondent testified that on June 3, 1976, he had a date with Arthur to take him grocery shopping and do some personal business, including paying his real estate taxes. When they finished, Arthur asked respondent to come to his home and look over some things, and there showed him the 1968 will. Respondent suggested deleting attorney Henzi’s name. Arthur suggested substituting Carl Kuhn’s name, and respondent called Mr. Kuhn, who agreed to serve as attorney for the executor but indicated in response to respondent’s question whether “he was available for us to drop in and get a will executed” that he could not take care of it before the following day. Because Arthur wanted it done then, respondent testified, respondent called his secretary from the Hardisty home and told her to “pull out the copy of Mr. Hardisty’s will and retype it substituting Mr. Kuhn’s name for Fred Henzi’s” as attorney for the executor. Shortly thereafter respondent and Arthur went to respondent’s office, and the will was executed with employees of the insurance company which had purchased the office building from respondent serving as witnesses.

Respondent also testified that he became executor because in typing the 1976 will his secretary had mistakenly copied the unexecuted 1973 version rather than the 1968 will which respondent had intended. He had not noticed this and thought Russell Swanson was still executor as the 1968 will provided, instead of respondent, as provided in the unexecuted 1973 draft.

The trustee bank wrote respondent on June 16 informing him it did not have the 1973 amendment to trust No. 950, and suggested it be reexecuted. Respondent apparently knew of this earlier, since he testified that he had upbraided the bank personnel regarding the amendment’s loss, the net result of which was to substantially reduce respondent’s share of the estate. He also testified that his secretary, upon receiving the bank letter, redrafted the amendment, but that he never told Arthur that the bank had lost the amendment and the new draft was never executed.

Arthur died on June 21, 1976, and letters of administration were issued to a son, Albert; they were later revoked when the will was admitted to probate and respondent appointed executor. Suits were subsequently filed by Arthur’s heirs contesting the validity of the trust and of the will. That litigation was ultimately settled in 1979 pursuant to an agreement which gave Milton Hardisty, a son, and Quinton Hardisty, Agnes’ son, $1,000 each, and gave the real estate, valued at $120,000, to Albert in return for payment by him of $60,000 to be equally divided between respondent and Russell Swanson. The balance of the estate was to be divided one-half to the heirs and one-fourth each to respondent and Russell Swanson.

Russell Swanson testified at the disciplinary hearing that he had been a friend of Arthur Hardisty since before his marriage to Agnes and was Arthur’s “handyman.” He had urged the couple to make wills. Arthur “ran hot and cold on people,” but usually regarded the witness and respondent as his friends. Arthur and Agnes had a very poor relationship with Albert, Milton and Quinton, and both spoke of the sons in profane terms. None of the family came to Arthur’s wake or funeral, although Albert “cleaned out” the house the day his father was taken to the funeral home. The witness learned of the 1974 will, but testified he knew nothing of the circumstances, although he thought his wife had taken Arthur to attorney Bunge’s office, where she, too, had a will drawn. The witness also testified that Arthur was “a very alert individual for an old fellow,” but became increasingly dependent on others during the last six months of his life.

We pause here to note that the reports of the hearing panel and the Review Board in this case appear to indicate a belief by their members that respondent was the sole residuary beneficiary of Arthur’s estate under the terms of the will and the trust. The record, however, indicates he was not, since the 1973 amendment to the trust which eliminated Russell Swanson as a residuary beneficiary was lost by the bank. No new amendment was executed, and respondent’s testimony seems to indicate an acceptance by him of the ineffectiveness of the 1973 amendment.

At the time of the conduct with which we are principally concerned, canons of professional conduct had been adopted by the Illinois State Bar Association Board of Governors on May 1, 1970. Included therein was DR 5 — 101(A), which respondent is accused of breaching, and which was subsequently adopted verbatim as our Rule 5 — 101(a). It provides:

“Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” 79 Ill. 2d R. 5—101(a).

There is no doubt, of course, that drafting a will in which he is to be named a substantial beneficiary is employment embraced within the quoted language. As we said in In re Barrick (1981), 87 Ill. 2d 233, 238: “[W]hen an attorney drafts a will naming himself as a beneficiary, the potential for abuse in the clash of roles is serious enough that the attorney must be deemed to suffer from a conflict of interest.” While as long ago as the days of the Roman emperors one who drafted a will could not name himself as beneficiary (In re Blake’s Will (1956), 21 N.J. 50, 120 A.2d 745), most of the modem cases and ethical canons do not contain such a flat prohibition (Annot., 98 A.L.R.2d 1234 (1964)); there are, however, exceptions. (See, e.g., In re Gonyo (1976), 73 Wis. 2d 624, 245 N.W.2d 893; State v. Collentine (1968), 39 Wis. 2d 325, 159 N.W.2d 50.) Among the reasons for including such action, absent exempting circumstances, within the definitions of unprofessional conduct subjecting the doer to disciplinary action are that it may well involve a disservice to the client for it involves the attorney in a conflict of interests, may affect his competency to testify, jeopardizes the will if a contest ensues, thus harming other beneficiaries and possibly nullifying the testator’s intended distribution of his estate, and diminishes confidence in the integrity of the legal profession. Barrick; Annot., 19 A.L.R.3d 575 (1968); Annot., 98 A.L.R.2d 1234 (1964); Disciplinary Board v. Amundson (N.D. 1980), 297 N.W.2d 433; State v. Horan (1963), 21 Wis. 2d 66, 123 N.W.2d 488.

It is, of course, apparent from our opinions that this court has consistently disfavored the actions of attorneys who prepare for clients documents in which the lawyer is a beneficiary. (Barrick; In re Saladino (1978), 71 Ill. 2d 263; In re Anderson (1972), 52 Ill. 2d 202; Dial v. Welker (1927), 328 Ill. 56.) It is equally clear that in those cases we have not considered such action sufficient per se to warrant discipline. (Barrick.) As we there indicated, in special circumstances such as existed in that case, such action may not be improper, and we held that since the respondent there had made a full disclosure to the client of the ethical considerations involved and urged her “until she would hear no more about it” to employ other counsel (In re Barrick (1981), 87 Ill. 2d 233, 241), the disciplinary complaint should be dismissed.

There are, however, significant differences between that case and this. Respondent here drafted instruments which would have given him the bulk of the estate. Arthur’s sons were given nothing. While the testimony established that the father-son relationship was poor, a 1974 will of which Arthur had not informed respondent until two years later included one of the sons and substantially reduced respondent’s share of the estate. Too, we do not have here the clear proof of full disclosure to a “sharp” and active client which the record contained in Barrick. While respondent testified in general terms that he had suggested employment of other counsel on most of the occasions in question, he did not do so in 1976 when the real estate was conveyed to the trust, and the Review Board’s statement that on “all” occasions respondent had suggested the employment of other counsel is in error. Respondent’s testimony on this point was that he regarded the deed as unnecessary since respondent’s will devised the real estate to the trust. While it is correct that the 1968 will so provided, it had apparently been revoked by the 1974 will. Too, the 1976 will, drawn a week after the deed, was challenged by the sons and might have been overturned in a trial on the merits. We do not agree that the deed was inconsequential.

We believe, as found by the hearing panel, that it has been established by clear and convincing evidence that respondent violated DR 5 — 101(A). On at least one occasion in 1976 he accepted employment without any suggestion to his client of the problems involved and the desirability of securing independent counsel, and the quality and extent of the disclosure on other occasions is questionable. There is, for example, nothing before us to indicate any attempt by respondent to explain to his client the possibility that the will he drafted might be challenged on undue-influence grounds because of his dual role as drafter and beneficiary. This not unusual result occurred, with the consequence that a settlement giving the sons a portion of the estate thwarted Arthur’s apparent intent to disinherit them. Nor did respondent, when his client refused other counsel, make any real effort to protect the documents he drew from subsequent challenges. Instead of using independent witnesses on the 1976 will, as was true in Barrick, he used individuals whose credibility might have been successfully attacked because of their acquaintanceship with respondent. In view of respondent’s clear breach of the Code, we believe dismissal inappropriate.

There are, however, mitigating circumstances. Respondent and Russell Swanson were apparently the two persons most concerned with Arthur’s welfare and actively assisting him. Given his estrangement from the sons it is not unnatural for Arthur to name respondent and Swanson as beneficiaries in the will and trust. Were there any doubt of the fact that Arthur Hardisty and his sons were estranged, the fact that none of the sons attended either the wake or the funeral would seem to eliminate it. Consequently, there appears no real reason to doubt the testimony that the testator intended to disinherit them, even though the execution of the revoked 1974 will may have encouraged filing of the contests. While respondent does not appear to have made as full a disclosure as the rules contemplate of the potential problems his drafting the documents might pose, his client was a personal friend whose needs, both professional and otherwise, respondent had helped care for over the years and who, we do not doubt, was resistant to respondent’s suggestions of other counsel. Apparently, the notion of a bequest to respondent originated with the testator and continued in varying forms for nearly eight years prior to his death. Too, while respondent testified his secretary retyped the lost 1973 amendment which gave him 100% of the residue of the trust, respondent does not appear to have made any effort to have it reexecuted by his client. In fact the testimony indicates respondent did not even inform the client that the amendment had been lost by the bank and was not effective even though respondent apparently knew of its loss some time prior to receipt of the bank letter notifying him of it. The lack of any effort to secure the reexecution of the amendment coupled with respondent’s attempt to persuade Arthur to sell his property and move out of State, which would likely have terminated their relationship, seems to belie the existence of any intent by respondent to abuse his client’s confidence.

Considering all of the circumstances, we have concluded that censure is the appropriate sanction.

Respondent censured.

JUSTICE MORAN took no part in the consideration or decision of this case.


text:
    (No. 54798.

      In re MARRIAGE OF ALICE JUDITH ELTREVOOG, Appellant, and EBERT N. ELTREVOOG, Appellee.

      Opinion filed September 17, 1982.

      RYAN, C.J., took no part.
    William T. Surin and Bernard L. Engels, of the law offices of Craig M. Armstrong, of Ottawa, for appellant.
    C. Stephan Marsh, of Peter F. Ferracuti & Associates, of Ottawa, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Alice J. Eltrevoog and Ebert N. Eltrevoog were married on October 19, 1946, in Ottawa. They lived together as husband and wife from the date of their marriage until August 1, 1960, when Alice moved out. On July 17, 1979, Alice filed a petition for separate maintenance alleging extreme and repeated mental cruelty on the part of Ebert. Ebert responded and filed a counterpetition for dissolution of marriage alleging extreme and repeated mental cruelty on the part of Alice.

The circuit court of La Salle County found that, without cause or provocation by Alice, Ebert had been guilty of extreme and repeated mental cruelty toward Alice as charged in her petition for separate maintenance, and that Alice had proved the material allegations of her petition. The trial court also found that without cause or provocation by Ebert, Alice had been guilty of repeated mental cruelty toward Ebert as charged in his counterpetition for dissolution of marriage and that Ebert had proved the material allegations of his counterpetition. The trial court, sua sponte, went on to declare section 402 of the Illinois Marriage and Dissolution of Marriage Act, entitled “Legal separation” (Ill. Rev. Stat. 1979, ch. 40, par. 402), unconstitutional and of no effect. A judgment for dissolution was entered. An appeal was taken directly to this court pursuant to Rule 302(a) (73 Ill. 2d R. 302(a)).

Section 402 of the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Act) provides:

“Sec. 402. Legal Separation. If the requirements of Section 401 have been met, except for time periods stated therein, and if a party, prior to trial, requests a judgment of legal separation (formerly known as separate maintenance), rather than a judgment of dissolution of marriage, the court shall grant the judgment in that form, provided that the petitioner has resided in a separate abode from the respondent continuously since the separation, and such separation has been without the petitioner’s fault.” Ill. Rev. Stat. 1979, ch. 40, par. 402.

In the circuit court’s supplement to its original opinion the court stated why it found section 402 of the Act to be unconstitutional. The trial court first expresses concern over the requirement of section 402 that the petitioner must reside in a separate abode “continuously since the separation” (Ill. Rev. Stat. 1979, ch. 40, par. 402). To the trial court such a requirement constitutes “an arbitrary restriction upon the application of section 402.”

The purpose of this section’s predecessor (Ill. Rev. Stat. 1975, ch. 68, par. 22, repealed; see Ill. Ann. Stat., ch. 40, par. 402, Historical and Practice Notes, at 186 (Smith-Hurd 1980)) was to enable a married woman to bring an action in equity that would provide a remedy unavailable at common law for a woman living apart from her husband. (Bush v. Bush (1942), 316 Ill. App. 295; Schneider v. Schneider (1941) , 312 Ill. App. 59.) At common law a wife who lived apart from her husband, without fault, carried with her the husband’s credit to the extent of supplying herself with necessities. A statutory remedy evolved so that a wife, instead of begging credit at stores on her husband’s account, could apply to the court for money to provide her a means with which to live. Van Dolman v. Van Dolman (1941), 378 Ill. 98; Bartlow v. Bartlow (1904), 114 Ill. App. 604.

The right to maintain an action for separate maintenance was eventually extended to husbands. Bush v. Bush (1942) , 316 Ill. App. 295.

For one spouse to bring an action for separate maintenance under our prior statute he or she must have been living apart from the other spouse. (Ill. Rev. Stat. 1975, ch. 68, par. 22, repealed; Cooper v. Cooper (1912), 160 Ill. App. 449.) The requirement that the spouses be living apart remains a prerequisite for a party to successfully bring an action for legal separation under our current statute. (Ill. Rev. Stat. 1979, ch. 40, par. 402.) Contrary to the trial court’s characterization, that requirement is a logical and sound one.

The judgment for dissolution of marriage states:

“5. That without cause or provocation by the Petitioner, the Respondent has been guilty of extreme and repeated mental cruelty toward the Petitioner as charged in her Petition for Separate Maintenance and the Petitioner has proved the material allegations of her Petition for Separate Maintenance.
6. That without cause or provocation by the Respondent, the Petitioner has been guilty of extreme and repeated mental cruelty toward the Respondent as charged in his Counter-Petition for Dissolution of Marriage and the Respondent has proven the material allegations of his Counter-Petition for Dissolution of Marriage by substantial, competent and relevant evidence, and that a Judgment for Dissolution of Marriage should be entered herein.”

Those separate findings by the trial court are totally inconsistent and wholly irreconcilable. The court’s action in declaring section 402 unconstitutional in the wake of such inconsistent findings misconstrues the statute. The trial court’s separate findings of fact cannot stand together. It is not section 402 that is, in the words of the trial court, “impossib[le] of [a] rational interpretation and application.” It is rather that section 402 was not given a rational interpretation and application here.

The trial court found that the word “party” in section 402 meant either party to the proceeding, and concluded, under its interpretation of “party,” that a party at fault could direct the outcome of the litigation. Recognizing that such a result was patently ridiculous, the court held section 402 of the Illinois Marriage and Dissolution of Marriage Act to be unconstitutional.

Section 402 mandates the same grounds be established as are required for a dissolution of marriage under section 401. Section 402 provides that a party otherwise entitled to dissolution may request a legal separation rather than a judgment of dissolution. It is inconceivable to require that grounds for dissolution of marriage be established before allowing a party to obtain a legal separation and at the same time make grounds irrelevant by permitting a party at fault to require the court to enter a judgment for legal separation by merely making such a request prior to trial. The literal interpretation of the term “party” by the court to mean any party, leads to consequences that the legislature could not have contemplated and surely did not intend. If a reasonable construction will uphold the constitutionality and validity of a statute, that is the interpretation this court will give the statutory language. Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561; Illinois National Bank v. Chegin (1966), 35 Ill. 2d 375, 378; 2A A. Sutherland, Statutory Construction sec. 45.12 (4th ed. 1973).

We agree with the appellate court in In re Marriage of Davenport (1981), 92 Ill. App. 3d 675, that the word “party” can only mean one who, seeking a legal separation, is free from fault. We do not interpret section 402 as enabling a spouse at fault in a marriage to be able to prevent the other spouse from obtaining a dissolution. In re Marriage of Davenport (1981), 92 Ill. App. 3d 675, 676.

We recognize that the trial court, in determining the weight to be afforded conflicting testimony, is in a far better position to determine the credibility of witnesses. (In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 587.) The record reflects that each spouse’s rendition of who was the cause of their problems during their life together is quite different. Had the trial court judge found solely in favor of either spouse’s petition, we could not say that it would be against the manifest weight of the evidence. But the trial court’s findings that Alice Eltrevoog was without fault and Ebert was guilty of extreme and repeated mental cruelty towards her, while simultaneously finding that Ebert Eltrevoog was without fault and Alice was guilty of extreme and repeated mental cruelty towards him, simply contradict one another. Such findings cannot stand together.

We therefore find it necessary to vacate the judgment of dissolution and remand for a new trial to allow consistent findings to be made by the trier of fact in resolving the question of which spouse’s petition is meritorious.

Judgment vacated; cause remanded.

CHIEF JUSTICE RYAN took no part in the consideration or decision of this case.