author: MR. JUSTICE WARD

text:
    (No. 51152.
    VILLAGE OF RIVERWOODS et al., Appellants, v. DEPARTMENT OF TRANSPORTATION et al., Appellees.

      Opinion filed October 2, 1979.

      Eerie L. Schwartz, of Highland Park, for appellant Village of Riverwoods.
    Eerie L. Schwartz and Thomas H. Compere, of Highland Park, for appellant City of Highland Park.
    Ronald M. Clink, of Ancel, Clink, Diamond & Murphy, P.C., of Chicago, for appellant Villages of Lincolnwood, Maywood, and Bridgeview.
    Sydney G. Craig and Thomas H. Donohoe, of Martin, Craig, Chester & Sonnenschein, of Chicago, Alan R. J ohnston, Village Attorney, of Kenilworth, and Jenner & Block, of Chicago, for appellant Villages of Kenilworth, Glencoe, and Winnetka.
    Michael Schneiderman and Michael M. Conway, of Hopkins, Sutter, Mulroy, Davis & Cromartie, of Chicago, for appellant Village of Lincolnshire.
    Jack M. Siegel, Corporation Counsel, of Chicago, for appellant City of Evanston.
    Rosing & Carlson, Ltd., of Waukegan (William G. Rosing and Stephen G.. Applehans, of counsel), for appellant City of North Chicago.
    William J. Scott, Attorney General, of Springfield (George W. Wolff, Anne K. Markey, and Joyce Alexander McMagny, Assistant Attorneys General, of Chicago, of counsel), for appellee Department of Transportation.
    Clifford L. Weaver and David T. Hejna, of Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellees Des Plaines-Mount Prospect-Arlington Heights-Palatine Water Commission et al.

    Schiff, Hardin & Waite, of Chicago (Guenther M. Philipp, Elwood T. Olsen, Janet Rae Montgomery, and William G. Southard, of counsel), for appellee Village of Downers Grove.
    Donald M. Rose, City Attorney, and Kathleen Ross, of Chicago (Moriarty, Rose & Hultquist, Ltd., of counsel), for appellee City of Rolling Meadows.
   MR. JUSTICE WARD

delivered the opinion of the court:

The appellants here are 11 of some 195 municipalities and other governmental entities in northeastern Illinois which applied to the Department of Transportation for initial allocations of water to be diverted from Lake Michigan under “An Act in relation to the regulation and maintenance of the levels in Lake Michigan ***” (Ill. Rev. Stat. 1977, ch. 19, pars. 119 through 120.11) (the Act). Evidentiary hearings were held before the Department during 1975 and 1976 in a proceeding captioned “In the Matter of Lake Michigan Water Allocation” that resulted in Order LMO 77 — 1, issued April 15, 1977, in which the Department awarded each appellant less than the full amount of water requested by it. After considering petitions for rehearing, the Department altered some allocations, but Order LMO 77 — 1 was adhered to in all respects material to this appeal by Order LMO 77 — 2, which was issued September 26, 1977.

Pursuant to section 12 of the Act (Ill. Rev. Stat. 1977, ch. 19, par. 120.10), complaints for administrative review were filed in the circuit court of Lake County by the appellants and by other applicants. The circuit court set aside a portion of Order LMO 77 — 2 which reduced the allotment to the village of Glencoe below the amount which had previously been allocated by LMO 77 — 1, but in all other respects the court affirmed the orders of the Department. An appeal to this court was allowed under Rule 302(b). 58 Ill. 2d R. 302(b).

The appellants here are the villages of Riverwoods, Kenilworth, Glencoe, Winnetka, Lincolnwood, Maywood, Bridgeview and Lincolnshire and the cities of Evanston, North Chicago, and Highland Park. While these appeals were pending the city of Evanston advised us that the Department had modified its order so as to increase Evanston’s allocation, and that Evanston therefore would not participate further in this appeal. The city of Rolling Meadows and the village of Downers Grove urge affirmance of the judgment below, as does the Des PlainesMount Prospect-Arlington Heights-Palatine Water Commission and its member municipalities.

The matter before us had its immediate origin in the decree entered by the Supreme Court of the United States in Wisconsin v. Illinois (1967), 388 U.S. 426, 18 L. Ed. 2d 1290, 87 S. Ct. 1774, which enjoined the State of Illinois and its municipalities and political subdivisions from diverting water into the Illinois waterway from Lake Michigan, or its watershed, in excess of an annual average of 3,200 cubic feet per second (abbreviated hereafter as cfs). The diversion prohibited by the decree was broadly defined to include diversion “by way of domestic pumpage from the lake the sewage effluent derived from which reaches the Illinois waterway, or by way of storm runoff from the Lake Michigan watershed which is diverted into the Sanitary and Ship Canal, or by way of direct diversion from the Lake into the canal ***.”

The decree also provided that the total amount of water which might be diverted “may be apportioned by the State of Illinois among its municipalities, political subdivisions, agencies, and instrumentalities for domestic use or for direct diversion into the Sanitary and Ship Canal to maintain it in a reasonably satisfactory sanitary condition, in such manner and amounts and by and through such instrumentalities as the State may deem proper, subject to any regulations imposed by Congress in the interests of navigation or pollution control.” 388 U.S. 426, 427-28, 18 L. Ed. 2d 1290, 1291, 87 S. Ct. 1774, 1775.

Federal limitations on the amount of water which Illinois could remove from Lake Michigan had existed prior to 1967. See Sanitary District v. United States (1925), 266 U.S. 405, 69 L. Ed. 352, 45 S. Ct. 176; Wisconsin v. Illinois (1929), 278 U.S. 367, 73 L. Ed. 426, 49 S. Ct. 163; Wisconsin v. Illinois (1930), 281 U.S. 179, 74 L. Ed. 799, 50 S. Ct. 266; Wisconsin v. Illinois (1930), 281 U.S. 696, 74 L. Ed. 1123, 50 S. Ct. 331; Feldman, The Lake Diversion Case — The End of a Cycle, 49 Chi. Bar Rec. 270 (1968).

State legislation relating to the level of Lake Michigan was enacted as early as 1929 in an act providing for cooperation with the Federal government in the maintenance of the level of the lake (1929 Ill. Laws 101). That legislation presumably came in response to the decision of the United States Supreme Court in the Sanitary District case mentioned above. So far as we are advised, however, no provision was made for the apportionment of the amount of water to which the State was entitled until an amendment to the act made in 1969 (Pub. Act 76 — 1844, 1969 Ill. Laws 4071). A further amendment effective in 1972 (Pub. Act 77-163, 1971 Ill. Laws 333) designated the Department as the agency to administer the apportionment.

In its memorandum opinion the circuit court notes that in 1972, prior to the present allocation hearings, the Department had entered an allocation order which had been set aside by the court because of procedural defects. No reference to that earlier proceeding or its effect, if any, on the case now before us is made by the parties, and we do not consider it here.

We turn first to a contention made by several municipalities which abut on Lake Michigan that the Act violates the due process clauses of the Federal and Illinois constitutions, since it accords no priority to riparian and prescriptive rights which they allegedly possess as to water from Lake Michigan.

We entertain some question whether common law riparian or prescriptive rights include a right to the diversion, as distinguished from the use, of the waters of Lake Michigan, as that term is defined in the decree in Wisconsin v. Illinois (1967), 388 U.S. 426, 18 L. Ed. 2d 1290, 87 S. Ct. 1774, or whether such rights may override the paramount interest of the State. The decree itself contains no language requiring Illinois to grant a preferential position to governmental entities claiming such rights. We think it unnecessary to examine further the extent of the rights asserted by these appellants, however, for our decisions in Supervisors v. Village of Rainbow Gardens (1958), 14 Ill. 2d 504, 507-08, and Meador v. City of Salem (1972), 51 Ill. 2d 572, 578, establish that a municipal corporation is not entitled to the protection of the due process clause against the State.

The cities of Highland Park and North Chicago and the villages of Riverwoods and Lincolnshire challenge the Department’s orders on the ground that the Act fails to provide adequate standards to guide the Department, and that the General Assembly has thus made an improper delegation of its legislative power.

The relevant portion of the Act is section 5 (Ill. Rev. Stat. 1977, ch. 19, par. 120.3), which provides as follows:

“Regional organizations, municipalities, political subdivisions, agencies or instrumentalities, and any other organization, association or individual desiring use water from Lake Michigan and subject to allocation under this Act shall make application to the Department of Transportation on forms provided by such agency which shall include a statement or finding relative to other sources of water or lack thereof within the area, the need for such allocation or apportionment of Lake Michigan water, the purpose or use to be made of the water so allocated, the point of diversion and the location of discharge after use, together with the route such discharge will follow to reach an identifiable, main drain or stream, and whether such water will in any manner be treated or otherwise altered or changed prior to discharge and release from control by the applicant.
The Department in determining each allocation of water under this Act shall consider the water requirements of the Northeastern Illinois Metropolitan Region (specifically the counties of Cook, DuPage, Kane, Lake, McHenry and Will); the Department shall be guided by population, business and economic projections and requirements. The Department shall require that all feasible means reasonably available to the State and its municipalities, political subdivisions, agencies and instrumentalities have been employed to conserve and manage the water resources of the region and the use of water therein in accordance with the best modern scientific knowledge and engineering practice.” (Emphasis added.)

As directed by the legislature in section 9 of the Act (Ill. Rev. Stat. 1977, ch. 19, par. 120.7), the Department prescribed and published Rules and Regulations Regarding Allocation of Water From Lake Michigan. It is unnecessary for present purposes to set them out in full, but it may be said that they specify in some detail the factors governing apportionment. Thus Rule 303 divides water users into two categories, those “whose primary water uses are residential, commercial or industrial,” and those “whose primary water uses are sewage dilution, pollution abatement or navigation.” Applicants falling into the second category are in general given a lower priority than those falling in the first. The first category is subdivided into four classes. The first includes each applicant having “neither a developed or potential source of water supply other than Lake Michigan.” Class two includes each applicant “whose developed and potential water resources other than Lake Michigan are insufficient to meet its needs.” Class three includes each applicant “whose undeveloped water resources other than Lake Michigan are potentially capable of meeting its needs, but whose developed water resources are insufficient.” Within class four falls each applicant “whose developed water resources other than Lake Michigan are sufficient to meet its needs.” Each class is to receive a full allocation of its water needs before any water is allocated to applicants in higher-numbered classes.

Rule 304 deals with the determination of anticipated water needs for each applicant. Basically it provides for consideration of “the population of the area to be served, projected population growth, current and projected per capita consumption within the area, [and] the nature and extent of industrial uses ***.”

The contention now under discussion is not that the rules issued by the Department by which allocations were given the appellants are irrelevant to the declared purposes of the Act, nor is it that the allocations were not made pursuant to those rules. The argument is rather that the Act provides no standards at all. Thus, for example, the city of Highland Park, referring to the directive in section 5 that the Department shall be guided by population, business and economic projections and requirements, comments in its brief: “Every community has ‘population, business and economic projections and requirements.’ How is the Department to rank these criteria, and on what basis is it to prioritize applicants?”

It is a fair reading of section 5 taken as a whole, however, that in making its apportionment the Department is to consider the water requirements of each applicant, and is to do so in the light of its population, both present and projected, of the alternative sources of water available to it, and of its practices in conserving its use of water. We do not believe that, under the unusual circumstances giving rise to this legislation, the General Assembly was required to specify the amount of water to be awarded each applicant or provide a rigid formula from which that amount could be calculated, nor yet to attempt a ranking of priorities among the many different factors which necessarily enter into the allocation process. While we recognize that there is no onus upon the appellants to draft a model apportionment act, we nevertheless find it significant that none of them is prepared to specify what form of statute would meet their criticism and also deal with the problem of apportionment in a workable manner.

The General Assembly did not have an unlimited option to pick and choose among patterns of allocation, since the total amount of water which could be diverted had already been fixed by the 1967 Supreme Court decree (Wisconsin v. Illinois (1967), 388 U.S. 426, 18 L. Ed. 2d 1290, 87 S. Ct. 1774), and since there existed no established system for allocating water in Illinois, unlike many other States. See Plager 8c Maloney, Emerging Patterns for Regulation of Consumptive Use of Water in the Eastern United States, 43 Ind. L.J. 383 (1968); Oeltjen & Fischer, Allocation of Rights to Water: Preference, Priorities, and the Role of the Market, 57 Neb. L. Rev. 245 (1978).

It should be noted that the apportionments made in this case are not unalterable. The initial allocation of water which is under review covers the period from 1977 to 1981. In the latter year the permit of each applicant will expire. While under the Department’s rules a permit would customarily be renewed in the same amount, a permittee may make a motion to have its permit modified by increasing the amount. Rule 308 provides that a basis for modification is “[e] vidence of a substantial change in circumstances which result in a change in water needs of the permittee.” Rule 310, moreover, provides that a permittee may make such a motion at any time, and the rule provides further, “If the Department finds that any such petition is supported by an adequate statement of reasons, is not plainly devoid of merit and does not deal with a subject on which a hearing has been held within the preceeding six months, a hearing shall be held.” The denial of a permittee’s motion would be reviewable under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) as are other orders of the Department.

Those appellants that advance the thesis that the Act is invalid because of improper delegation of power cite, but without extended discussion, the decisions in R. G. Lydy, Inc. v. City of Chicago (1934), 356 Ill. 230, Krebs v. Thompson (1944), 387 Ill. 471, City of Kankakee v. New York Central R.R. Co. (1944), 387 Ill. 109, People ex rel. Chicago Dryer Co. v. City of Chicago (1952), 413 Ill. 315, Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, and Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503. None of these cases presents a situation comparable to the unusual one involved here, and some of them are readily distinguishable, such as the Lydy and City of Kankakee cases, where the lack of any judicial review of the administrative action was a factor, and Dryer, which related to the delegation of legislative power to private persons.

Village of Lombard v. Pollution Control Board is closer to the mark in that it concerned comprehensive, systematic regulation by a specialized agency, but the defect found there was not a lack of standards in the statute, but rather the absence from the statutory standards of authorization for the particular regulation in question.

More pertinent is Hill v. Relyea (1966), 34 Ill. 2d 552, cited by the circuit court in its rejection of the claim of improper delegation. That case involved a Mental Health Code provision authorizing the director of a hospital to grant a discharge to one hospitalized for mental treatment “as the welfare of such person and of the community may require, under such rules and regulations as may be adopted by the Department.” (Ill. Rev. Stat. 1963, ch. 9114, par. 10 — 6.) This court reversed a decision of the trial court that this standard was so general as to be an invalid delegation of legislative power. In that connection this court pointed out:

“The difficulty in attempting to establish more precise legislative standards is readily apparent. The superintendent of the hospital and his staff examine, work with and treat the hospitalized person. They can determine more understanding^ and advantageously when the welfare of the person and of the community may require a discharge or continued hospitalization of such person. Therefore it is desirable to grant to the superintendent and the Department the authority to discharge hospitalized persons and the discretion as to when the welfare of such person requires it. The nature of the objectives to be achieved and the problems to be solved negate the usefulness of setting more precise legislative standards.” (34 Ill. 2d 552, 556.)

The standard upheld as sufficient in Hill was far more vague and subjective than that contained in the present Act, and the objectives to be achieved and the problems to be solved here far exceed those of Hill in magnitude, intricacy, and urgency.

The viability of some of the cases cited by the appellants is also cast in doubt by our recent decisions in Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, and Thygesen v. Callahan (1979), 74 Ill. 2d 404. In the former, the court reappraised the constitutional limitations upon rule-making under a comprehensive regulatory statute. It concluded that the boundary between those rights and duties which may be prescribed by regulation and those which must be prescribed by statute could no longer be drawn in terms of a supposed distinction between an “administrative act” and a “legislative act,” as some past decisions had supposed. (68 Ill. 2d at 369-70.) The proper criterion was rather whether the statute sufficiently identified “(1) [t]he persons and activities potentially subject to regulation; (2) the harm sought to be prevented; and (3) the general means intended to be available to the administrator to prevent the identified harm.” (Emphasis in original.) 68 Ill. 2d 361, 372.

Thygesen echoed the concern displayed in Stofer over the “inconsistent application of the principle that standards or guidelines must accompany legislative delegations of power” (74 Ill. 2d 404, 408) and endorsed the three-prong formula put forward in Stofer.

Although the regulatory rule-making involved in both Stofer and Thygesen differs from the rationing system mandated by the present act, we do not believe that the test proposed in those cases becomes irrelevant. Here there is no difficulty in identifying either the .persons subject to regulation or the harm sought to be prevented, and the primary means to be employed by the Department is also plain. Judged by that test, the Act certainly satisfies constitutional requirements as to delegation of authority.

In addition to making the general challenges to the validity of the Act discussed above, the appellants object to various specific findings on which the allocations made in their individual cases were based. These particularized objections go mainly to the weight of the evidence, particularly in regard to estimates of future population and water requirements. The administrative hearings below lasted IV2 years, and the transcript of proceedings fills some 10,000 pages, excluding exhibits. The trial court reached its decision upon a review of that evidence under the usual standards of review, and with the proper deference due “the factual determinations of an agency charged with the primary responsibility for adjudication in a specialized area.” (Motorola, Inc. v. Illinois Fair Employment Practices Com. (1966), 34 Ill. 2d 266, 274.) The multiplicity of the appellants’ objections, the fact that their relevance is largely confined to the circumstances of these particular allocations, and the availability of future modification at the administrative level make it unnecessary to discuss each objection, and no more than the comments which follow seem called for.

The village of Riverwoods, which received no allocation of water under either LMO 77 — 1 or LMO 77 — 2, objects that the evidence clearly established that this appellant had no adequate alternative source of water than Lake Michigan. The Department correctly points out, however, that subsequent to the issuance of order LMO 77 — 2, Riverwoods was given an emergency allocation under Rule 305. The latter, for each of the four years involved, equaled or exceeded the amount requested by the appellant.

The city of North Chicago and the village of Lincoln-shire object to the Department’s use of a maximum rather than an average figure to calculate the amount of water to be set aside for storm-water runoff.

As explained in LMO 77 — 1, storm-water runoff is water originating by precipitation in the Lake Michigan watershed which, as the result of the reversal of the flow of the Chicago River in 1900, no longer flows into the lake but drains landward and ultimately into the Mississippi River Basin. Under the decree, storm-water runoff must thus be included as a part of the water diverted from Lake Michigan.

The Department estimated that the average annual runoff was about 550 cfs. However, since the decree requires that the maximum permissible diversion of 3,200 cfs be calculated on a five-year running average, the Department concluded that, in determining the amount of runoff, a maximum figure for runoff within that period (calculated as 730 cfs), rather than the annual average, should be utilized. The Department’s method, of course, results in making less water available for allocation to users.

The Department’s calculation of the maximum figure falls within the realm of its expertise. It is the Department which bears the responsibility for compliance with the decree, and its decision to employ the maximum rather than the average figure for runoff is not an abuse of its discretion.

The city of Highland Park charges that its allocations were discriminatory since they were based on an assessment of Highland Park’s future growth in population which was less than that used for several allegedly comparable communities. Estimates of future growth depend on a variety of factual assumptions, and necessarily some divergence of opinion is to be anticipated. The possibility that a different inference might have been drawn does not compel a reviewing court to set aside the one reached by the Department.

The village of Lincolnshire requested allocations of 1.03, 1.25, 1.46, and 1.69 cfs for the years 1977, 1978, 1979, and 1980, respectively. The Department allocated no water at all to this applicant either in LMO 77 — 1 or LMO 77-2.

The zero allocation made by LMO 77 — 1 was stated in that order to be based on the Department’s acceptance of population and water demand estimates for Lincolnshire made by the Northeastern Illinois Planning Commission (NIPC), Lincolnshire’s own forecasts having been found inadequate.

In order LMO 77 — 2 the Department stated, “Upon reexamination of the evidence introduced during the proceedings, the Department has concluded that the population and water demand projections introduced by Lincolnshire are more accurate than NIPC *** and therefore Lincolnshire’s estimates should be accepted. Therefore, Lincolnshire’s population (including population equivalents) is projected to be 7,800 for 1980 and Lincolnshire’s water demand is projected to be .668 mgd [million gallons per day] in 1977, .810 mgd in 1978, .945 mgd in 1979, and 1.092 mgd in 1980.”

Lincolnshire points out in its brief that these new figures increased its water needs very substantially. Thus, for example, the estimate originally made in LMO 77 — 1 for the year 1980 was only .550 mgd.

Lincolnshire contends in its brief that the Department’s continued refusal to allocate any water to it was therefore not supported by the finding now made as to water requirements. In its brief the Department did not reply to this point at all, and the matter is not specifically mentioned in the opinion of the trial court. While we are not prepared to state that Lincolnshire was entitled to some allocation of water, or what the amount, if any, should be, it appears that the result reached in LMO 77 — 2 may represent an oversight. With respect to Lincolnshire, therefore, we consider that the judgment of the circuit court should be reversed and the cause remanded for further consideration of the allocations to be made to it.

On oral argument counsel for the appellants suggested that the Department had not allocated the entire amount of water available, and that there was thus a “surplus” which could be used to increase allocations to applicants. Upon the request of counsel for the Department, the latter was given until June 18 to file a supplemental brief responding to this claim. The Department did not file such a brief, but on July 13 sought to file an affidavit by an employee of its Lake Michigan diversion section. The village of Lincolnshire moved to strike the affidavit, on the ground that it injected new matters into the proceeding. The affidavit was not accepted for filing by the clerk of the court, and the motion of the village of Lincolnshire was accordingly not acted upon. On July 30 the Department moved for leave to file its supplemental brief instanter, a copy of which was tendered with the motion. Attached to the brief was the same affidavit referred to above. The village of Lincolnshire again objected to the Department’s motion, and that motion is hereby denied.

Order LMO 77 — 2 recites that the entire 3,200 cfs of water permitted to be diverted was accounted for in each of the years from 1977 through 1981. The total for each year included not only the amount allocated to applicants, but amounts for “unallocated runoff” and for “discretionary dilution.” For the years 1979 and 1980, the total also included the amounts of 25.6 and 10.8 cfs, respectively, denominated as a “reserve.” It appears that these amounts had been set aside for contingency purposes in order to meet possible subsequent allocations for emergencies under Rule 305.

We think that no valid question can be raised as to the propriety of the Department’s setting aside a reasonable amount of water for that purpose. In any event, that issue was not raised in the appellants’ briefs, nor did they challenge the amount set aside.

We conclude, therefore, that the only question properly before us concerning any failure of the Department to allocate the entire allowable amount of water relates to the Department’s treatment of storm-water runoff, which has already been disposed of in this opinion.

For the reasons given, the judgment of the circuit court is affirmed in all respects except for the complaint of the village of Lincolnshire, as to which the judgment is reversed, and the cause is remanded to the circuit court with directions to proceed in a manner not inconsistent with this opinion.

Affirmed in part and reversed in part, and remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 51703.

      In re ESTATE OF BERTHA MORAN (Waynette Schneberger, Adm’r, Appellant, v. Owen A. Moran, Adm’r, Appellee).

      Opinion filed October 2, 1979.

      Adamowski, Newey & Adamowski, of Chicago (Frank C. Stanley, of counsel), for appellant.
    J ohn C. Williams, Arlene C. Erlebacher and Kathryn E. Korn, of Sidley & Austin, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The issue in this case is whether there was “sufficient evidence” under the Illinois version (Ill. Rev. Stat. 1975, ch. 3, pars. 41a through 41g) of the Uniform Simultaneous Death Act to show that one of two persons who died from carbon monoxide poisoning survived the other.

On November 12, 1975, Bertha J. Moran and her son, Ronald W. Moran, died as the result of carbon monoxide poisoning while sitting in a parked car which was left running in an enclosed garage. On December 18, 1975, after proceedings to probate Bertha’s estate, the circuit court of Cook County entered an order declaring that Bertha’s only surviving heirs at law were Jane M. Traeger, her daughter, and Owen A. Moran and Roger F. Moran, her other sons. Following the resignation of the executor of Bertha’s estate, the court appointed Owen A. Moran administrator de bonis non with the will annexed. Waynette Schneberger (petitioner), administrator of Ronald’s estate, thereafter petitioned the court to amend the table of heirship to reflect that Ronald survived Bertha. On July 11, 1977, following a bench trial, the court granted the petition. On appeal by the respondents, Owen A. Moran (as both heir and administrator), Roger F. Moran, and Jane M. Traeger, the appellate court reversed and remanded with directions to modify the order to conform with the original table of heirship. (67 Ill. App. 3d 576.) We granted the petitioner leave to appeal.

The Illinois version of the Uniform Simultaneous Death Act provides in pertinent part as follows:

“Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this Article.” (Ill. Rev. Stat. 1975, ch. 3, par. 41a.)

We note initially that none of the exceptions to which the foregoing provision refers is applicable here; therefore, the operative portion of the provision controls the resolution of this case. What constitutes “sufficient evidence” under the foregoing provision has never been addressed by this court. Other jurisdictions, however, as well as the Illinois appellate court, have passed upon this phrase, and are in substantial conformity as to its meaning and effect. In view of the directive that “[t] his Article shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact similar statutes” (Ill. Rev. Stat. 1975, ch. 3, par. 41g), particular weight is to be given to the decisions of these courts. The decisions provide several well-established rules to be followed in deciding the issue at hand.

The Act is not a rule of evidence, as such, but one of substantive law that governs the devolution of property under certain circumstances. (Brundige v. Alexander (Term. 1976), 547 S.W.2d 232, 234; In re Cruson’s Estate (1950), 189 Or. 537, 554, 221 P.2d 892, 899.) When the evidence fails to disclose that one of the persons survived the other and the operative portion of the Act is applicable, the Act controls the manner in which the property of both persons is to be disposed. The burden is on the party whose claim is dependent upon survivorship to prove the order of death by a preponderance of the evidence, the same degree of proof as is required in other civil cases. Smith v. Smith (1972), 361 Mass. 733, 736, 282 N.E.2d 412, 414; In re Estate of Schmidt (1968), 261 Cal. App. 2d 262, 270, 67 Cal. Rptr. 847, 852; United Trust Co. v. Pyke (1967), 199 Kan. 1, 8, 427 P.2d 67, 73; In re Cruson’s Estate (1950), 189 Or. 537, 562, 221 P.2d 892, 902; Sauers v. Stolz (1950), 121 Colo. 456, 458, 218 P.2d 741, 742; Prudential Insurance Co. v. Spain (1950), 339 Ill. App. 476, 482, cited with approval in In re Estate of Adams (1952), 348 Ill. App. 115, 121, and In re Estate of Lowrance (1978), 66 Ill. App. 3d 159, 160.

Direct or circumstantial evidence may properly be used to prove survivorship. (Smith v. Smith (1972), 361 Mass. 733, 736, 282 N.E.2d 412, 414; United Trust Co. v. Pyke (1967), 199 Kan. 1, 8, 427 P.2d 67, 72-73; In re Estate of Schmidt (1968), 261 Cal. App. 262, 67 Cal. Rptr. 847, 852; see Sahn v. Muscarello (1948), 336 Ill. App. 188, 194-95.) At common law, however, there is no presumption of survivorship based upon age, sex, or condition of health. (Modern Woodmen of America v. Parido (1929), 335 Ill. 239, 243; Middeke v. Balder (1902), 198 Ill. 590, 594; Brundige v. Alexander (Tenn. 1976), 547 S.W.2d 232, 234; 1 Jones, Evidence sec. 3.89, at 315-16 (6th ed. 1972).) Because the Act did not change the rules of evidence (Prudential Insurance Co. v. Spain (1950), 339 Ill. App. 476, 482), the same rule — no presumption of survivorship — holds true under the Act. See Smith v. Smith (1972), 361 Mass. 733, 736, 282 N.E.2d 412, 414; In re Bucci’s Will (Sur. Ct. 1968), 57 Misc. 2d 1001, 293 N.Y.S.2d 994, 996; In re Di Bella’s Estate (Sur. Ct. 1953), 125 N.Y.S.2d 755, 757.

The quality of evidence needed to prove priority of death, or survivorship, may be gleaned from a review of the evidence in several cases in which one of the deceased persons was found to have survived the other. Direct evidence was presented to satisfactorily establish survivor-ship in In re Estate of Schmidt (1968), 261 Cal. App. 2d 262, 67 Cal. Rptr. 847 (survivor was breathing, gasping and moaning and had extensive bleeding from the ears); In re Estates of Davenport (1958), 79 Idaho 548, 323 P.2d 611 (survivor was breathing and bleeding from the nose); Sauers v. Stolz (1950), 121 Colo. 456, 218 P.2d 741 (survivor had slight heart beat and was spurting blood from his head); and Prudential Insurance Co. v. Spain (1950), 339 Ill. App. 476 (survivor groaned, moved her head, and had a slight pulse). Cases in which circumstantial evidence was held sufficient to establish survivorship include In re Bucci’s Will (Surr. 1968), 57 Misc. 2d 1001, 293 N.Y.S.2d 994 (following airplane crash, survivor’s brain was intact and her blood contained carbon monoxide which could only have entered by inhaling such gas generated by a gasoline fire which occurred after the crash, while other deceased sustained massive head injuries and had no carbon monoxide in his blood); and United Trust Co. v. Pyke (1967), 199 Kan. 1, 427 P.2d 67 (survivor shot another in the head five times, with any one of the five shots capable of causing death almost instantaneously, before shooting himself once).

The evidence of record in the case at bar may be summarized as follows. Police Sergeant Metsch arrived first at the scene. Upon approaching the closed garage, he heard what sounded like an engine running and smelled an exhaust odor. He tried to open the garage but found it locked. The fire department emergency medical technicians team, headed by Assistant Fire Chief Bednarz, arrived shortly thereafter. Bednarz also heard an engine running and saw fumes or smoke coming from beneath the overhead garage door. One of the team members crawled into the garage through the window and, although the fumes inside were extremely heavy, managed to open the garage. Bertha and Ronald were found close together in the front seat of the car in slumped positions, Bertha on the passenger’s side and Ronald on the driver’s side with the seat belt fastened about him. The windows of the car were partially open. Bednarz examined Ronald while other team members examined Bertha; no signs of life were found in either. Upon an examination a short time later, Sergeant Metsch found that the exposed skin of both bodies had a reddish tinge. The record does not reveal that autopsies were performed.

Dr. Henry Swiontek, the Morans’ family physician, testified as to the decedents’ recent medical histories. He stated that Ronald had been a patient of his from 1972 through 1974, during which time Ronald periodically suffered from respiratory infections which lasted for about a week each time. A chest X ray taken in 1972 showed no pathology. Dr. Swiontek treated Bertha as a patient from 1972 until her death. Bertha suffered a small stroke in November of 1972, but responded favorably to treatment. Her heart, blood pressure and pulse were found to be normal, both a month after the stroke and thereafter, and she suffered no residual neurological effects. Bertha’s chest X ray, taken on September 16, 1973, revealed some calcification of the aorta, indicating a sclerosis or hardening of the arteries. Her X ray was taken when she was hospitalized for hip surgery which left her confined to a wheel chair. In November 1973, Bertha had a mild type of anemia, for which Dr. Swiontek treated her through 1974. Upon examining her the day before she died, Dr. Swiontek found Bertha’s heart, blood pressure and cardiac auscultations normal.

The petitioner called two pathologists, Dr. Robert Stein and Dr. Isadore Pilot, as expert witnesses. Dr. Stein opined that, on the basis o£ the ages of the two at the time of death, Ronald, 41 years of age, survived Bertha, who was 79. He stated further, “I am going strictly on experience.” Dr. Pilot formed the same opinion based upon Bertha’s advanced age and disabilities.

Dr. Charles Petty, a pathologist called as an expert by the respondents, concluded that, absent other factors, it would be impossible to determine which of the two individuals died first.

It is clear that the evidence introduced was all of the type going to the relative ages and conditions of health of the decedents. As such, it fits into the category of evidence which, under the rules set forth earlier, is deemed too speculative in nature to serve as a basis for a presumption of survivorship. The evidence was therefore wholly insufficient to prove that Ronald survived Bertha.

Accordingly, there being “no sufficient evidence that the persons died other than simultaneously,” the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 51657.

      In re PAUL T. WIGODA, Attorney, Respondent.

      Opinion filed October 2, 1979.

      WARD, J., took no part.
    John C. O’Malley and Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for respondent.
   MR. JUSTICE CLARK

delivered the opinion of the court:

Pursuant to Rule 753(e) (65 Ill. 2d R. 753), the Administrator of the Attorney Registration and Disciplinary Commission has been granted leave by us to file exceptions to the report and recommendation (with a dissent) of the Review Board, which affirmed the Hearing Board’s recommendation that the respondent, Paul T. Wigoda, a former alderman in the city council of Chicago, be reinstated to the Illinois bar. Also pursuant to Rule 753(e), we allowed the Administrator and respondent to file briefs and orally argue. There is no dispute of facts. A chronology of occurrences is necessary, however.

On October 10, 1974, respondent, admitted to the bar in 1950, was convicted by a jury in Federal district court for filing a false income tax return for the year 1969; he failed to report a $50,000 bribe. He was suspended from the practice of law on March 20, 1975, and disbarred on consent and his name stricken from the roll of attorneys (58 Ill. 2d R. 762) on January 26, 1976. Respondent entered a Federal prison January 9, 1976, and was released on July 2, 1976. On July 21, 1977, he petitioned for reinstatement (65 Ill. 2d R. 767).

The first issue raised, not directly addressed by this court before, is whether respondent’s petition is premature. The Administrator contends the period of time in between respondent’s disbarment on consent and his petition — 19 months — is insufficient to establish a “clear showing” of rehabilitation. The Administrator urges us to seek guidance from our Rule 767 (73 Ill. 2d R. 767), as amended subsequent to respondent’s petition: “No petition shall be filed within a period of *** 3 years after the date of an order allowing disbarment on consent ***.” The Administrator readily acknowledges this provision of our rules was not effective until almost a year after respondent filed his petition for reinstatement. At the time of filing respondent’s petition, Rule 767 (65 Ill. 2d R. 767) provided: “When an attorney who has been *** disbarred on consent wishes to be reinstated ***, he shall file his verified petition with the clerk of the court.” We disagree with the Administrator’s position for several reasons.

First, under Rule 767, as effective on July 21, 1977, respondent filed his petition properly and in good faith. (See In re Estate of Krotzsch (1975), 60 Ill. 2d 342, 345.) Second, the period of time between a disbarment on consent and a petition for reinstatement is not dispositive of the determination of rehabilitation. Rather, the evidence is. (We do not imply that the present requirement of three years is arbitrary. That reflects our concern for the gravity of disbarment and the improper act or acts which lead to disbarment. Accordingly, we do not make light of respondent’s criminal conviction.) Third, over four years have passed since respondent’s suspension and over 3V2 years since his disbarment on consent. It would be meaningless, if not inane, to deny respondent reinstatement on the basis of the sole issue of prematurity, then impliedly and seriously suggest that, since three years have passed, respondent may again begin the process of petitioning for reinstatement.

The second issue raised then is whether respondent has demonstrated that he is rehabilitated, and fit to practice law. The standard to be utilized is that a respondent must establish rehabilitation sufficient for reinstatement, by clear and convincing evidence. (See In re Starr (1976), 64 Ill. 2d 407, 415.) The Administrator contends that burden has not been met despite the recommendations of the Hearing Board and Review Board that respondent be reinstated. The findings of those boards are, of course, advisory and not binding. (In re Ashbach (1958), 13 Ill. 2d 411, 418.) We have repeatedly said, however, that the findings of those boards are “entitled to virtually the same weight as the findings of any initial trier of fact.” (In re Hallett (1974), 58 Ill. 2d 239, 250. Accord, e.g., In re Reynolds (1965), 32 Ill. 2d 331, 336; In re Bossov (1975), 60 Ill. 2d 439, 441; In re Smith (1976), 63 Ill. 2d 250, 255; In re Teichner (1979), 75 Ill. 2d 88, 97; and In re Mitan (1979), 75 Ill. 2d 118, 124.) The Hearing Board (and Review Board) have the opportunity to observe the demeanor of witnesses, judge their credibility and evaluate their testimony. (E.g., In re Bossov (1975), 60 Ill. 2d 439, 441.) Where the findings and recommendations of those boards are “based on uncontradicted and clear evidence,” they will be adopted. (In re Phelps (1973), 55 Ill. 2d 319, 322.) We find the evidence here to be clear, convincing and uncontradicted; therefore we do not agree with the contentions of the Administrator.

The Administrator has contended several things. First, respondent’s activities after disbarment, in prison and out, fail to demonstrate rehabilitation. Second, the testimony and affidavits of numerous people, favorable to respondent, lack probative value due to their bias, their failure to distinguish between the periods before and after respondent’s conviction, and their lack of extensive or intensive contact with respondent after his release from prison. Third, respondent’s continuous assertion of innocence indicates a lack of repentance and is a factor which should be considered in evaluating the evidence. Fourth, respondent is only very reluctantly paying his Federal tax liability (based on the conviction) after initially “refusing] to make an arrangement to pay this tax.”

We will address each of the Administrator’s arguments in reverse order. Given respondent’s assertion of innocence, it is not surprising that he has contested his Federal tax liability. However, it is clear he is now ready and willing to pay, which even the Administrator does not deny.

Respondent’s assertion of innocence, and therefore, consistent with that, his lack of repentance, are factors to be considered in considering a petition for reinstatement. However, repentance and rehabilitation are not the same. Rehabilitation, the most important consideration in reinstatement proceedings, is a matter of one’s “return” to a beneficial, constructive and trustworthy role. Repentance is a matter of contrition and regret. (See, e.g., In re Thomas (1979), 76 Ill. 2d 185, 190 (Thomas was not convicted of the crimes charged).) We find the comments of the Supreme Judicial Court of Massachusetts in In re Hiss (1975), 368 Mass. 447, 457-59, 333 N.E.2d 429, 436-37, especially appropriate:

“The continued assertion of innocence in the face of prior conviction does not, as might be argued, constitute conclusive proof of lack of the necessary moral character to merit reinstatement. Though we deem prior judgments dispositive of all factual issues and deny attorneys subject to disciplinary proceedings the right to relitigate issues of guilt, we recognize that a convicted person may on sincere reasoning believe himself to be innocent. We also take cognizance of Hiss’s argument that miscarriages of justice are possible. Basically, his underlying theory is that innocent men conceivably could be convicted, that a contrary view would place a mantle of absolute and inviolate perfection on our system of justice, and that this is an attribute that cannot be claimed for any human institution or activity. We do not believe we can say with certainty in this case, or perhaps any case, what is the true state of mind of the petitioner. Thus, we cannot say that every person who, under oath, protests his innocence after conviction and refuses to repent is committing perjury.
Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard-retained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practice law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule ***. Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to commit perjury by admitting to a nonexistent offense (or to an offense they believe is nonexistent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the bar, would encourage corruption in these latter petitioners for reinstatement and, again paradoxically, might permit reinstatement of those least fit to serve. We do not consider in this context the person who admits committing the alleged criminal act but honestly believes it is not unlawful.
Accordingly, we refuse to disqualify a petitioner for reinstatement solely because he continues to protest his innocence of the crime of which he was convicted. Repentance or lack of repentance is evidence, like any other, to be considered in the evaluation of a petitioner’s character and of the likely repercussions of his requested reinstatement. However, nothing we have said here should be construed as detracting one iota from the fact that in considering Hiss’s petition we consider him to be guilty as charged. Our discussion relates only to the issue whether Hiss must admit his guilt as condition to reinstatement.” (Emphasis in original.)

We believe respondent’s continuing belief in his innocence insufficient to bar reinstatement; we must look further.

The evidence shows the following. Respondent, while in prison, was engaged in religious activities and activities for education of prisoners and on behalf of the blind and was commended by prison authorities. Upon his release, he returned to Chicago to live with his family, began writing a textbook on municipal government and another work, helped his ailing father manage a hotel, and avoided politics and the practice of law. The Administrator has pointed out, apparently with a negative implication, that respondent has resigned from many civic and charitable organizations in which he actively worked prior to his conviction and imprisonment. We believe respondent could also have been motivated by the desire to save them from the embarrassment of association with a convicted member. We note that respondent has maintained his ties with the Rogers Park and Edgewater Community Councils.

Character testimony by a rabbi, a nun and educator, two attorneys, two members of the judiciary, a university professor, bank president, and “organizational consultant” on behalf of respondent was favorable. Although, as the Hearing Board expressly said, the testimony was based on the witnesses’ relationships with respondent prior to his conviction, all testified their views were no different despite the conviction: he was honest and, to the extent they were qualified to say, competent. Several witnesses had “substantial recent contacts” with respondent. Moreover, 126 affidavits from members of the circuit and appellate courts, legislators, a congressman, attorneys, clergymen and others, have been filed and attest to their knowledge of respondent’s conviction, the length of their acquaintance with respondent before and after the conviction, and their belief in his rehabilitation and fitness to practice law. Finally, respondent testified before the Hearing Board that he had not lost his appreciation for the legal system despite his conviction and protestations of innocence; that he believed a lawyer’s acceptance of a bribe is both immoral and illegal; and that he has been attempting to keep informed of changes in the law by reading advance sheets and legal periodicals.

The Administrator’s contention that the character testimony and affidavits lack probative value is not persuasive. It may be that 126 affiants and nine witnesses do not know respondent well enough to accurately assess his rehabilitation and fitness to practice law, but surely not all of them are suspect. These individuals are morally and legally bound by their oaths not to recommend respondent if they are not satisfied he is rehabilitated. (See Preston v. State Bar (1946), 28 Cal. 2d 643, 650-51, 171 P.2d 435, 439.) If we attach value to the swearing of an oath, we must attach some probative value to the testimony and affidavits.

We come then to the vital question of assessing the evidence. Just as a “degree of uniformity” (In re Spencer (1977), 68 Ill. 2d 496, 501) or “degree of consistency in the selection of sanctions” (In re Saladino (1978), 71 Ill. 2d 263, 275) is required in disciplinary proceedings, so too is consistency required in reinstatement proceedings. We do not have benefit of much authority, however. (E.g., In re Starr (1976), 64 Ill. 2d 407; People ex rel. Chicago Bar Association v. Reed (1930), 341 Ill. 573.) A comparison of the instant case to Starr is instructive. There the respondent was disbarred on consent for conversion to his use funds ($11,500) of four clients. Five years later, in 1969, the respondent filed a petition for reinstatement which was denied. In 1974, he again filed a petition for reinstatement. The Hearing Board recommended reinstatement, the Administrator filed exceptions, and the Review Board recommended denying the petition. This court again denied the petition because it found the respondent, despite favorable testimony, had failed to demonstrate rehabilitation for the following reasons. Stipulated facts showed a conviction in 1967 of impersonating a State official and 12 pending civil cases against the respondent. In 1971, the respondent solicited a client for another attorney in violation of the Code of Professional Responsibility. The respondent also failed to comply with this court’s Rule 767 by failing to comply with the Attorney Registration and Disciplinary Commission’s rules to disclose the civil cases (above) and accurately disclose his financial obligations. In Starr, the respondent, after his disbarment, was consistently involved in acts showing no concern for integrity and trustworthiness, hallmarks of the legal profession. That is clearly not the situation here where respondent, since his disbarment and release from prison, has, based on the record before us, lived a blameless life.

Because our concern in attorney disciplinary proceedings is primarily the protection of the public and the integrity of the profession, we cannot lightly pass over his conviction, which “is conclusive evidence of his guilt and is ground for disbarment” (see In re Pontarelli (1946), 393 Ill. 310, 314). However, our consideration of the evidence — of his activities since his disbarment — and the testimony and affidavits lead us to the conclusion respondent should be reinstated: he has expressed respect for and knowledge of our system of justice, he is profoundly aware of the gravity of the act of which he was convicted, and he has clearly and convincingly demonstrated his rehabilitation.

For these reasons, respondent’s petition for reinstatement should be allowed.

Respondent reinstated.

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


text:
    (No. 50964.
    KYLE THOMAS, Appellee, v. CHICAGO BOARD OF EDUCATION et al., (David Shlemon et al., Appellants).

      Opinion filed October 2, 1979.

      Lord, Bissell & Brook, of Chicago (Robert A. Knuti and Hugh C. Griffin, of counsel), for appellants.
    Liebling, Hauselman & Miller, Ltd., of Chicago (Martin F. Hauselman, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

We granted the defendants, David Shlemon, Theodore Loomis and Earl Gordon, leave to appeal from an appellate court decision (60 Ill. App. 3d 729) reversing an order of the circuit court of Cook County, which had dismissed with prejudice count I of the amended complaint of the plaintiff, Kyle Thomas. Count I of the 11-count complaint alleged that the plaintiff, a high school varsity football player, sustained injuries as a result of the negligence of the defendants, who were his football coaches, and of the defendant Chicago Board of Education (Board), which is not a party to the appeal before us. The allegations of negligence in count I included failure to adequately warn the plaintiff that football is dangerous; failure to provide adequate training for the plaintiff; failure to inspect, yet requiring “the plaintiff to use, improperly designed, obsolete, worn, defective or dangerous football helmet, face-mask, padding, football clothing and other equipment”; and requiring the plaintiff to play a scheduled varsity football game on a synthetic turf field which was improperly constructed and maintained and was owned by the Board. We are concerned with only the allegation, in count I, of defendants furnishing, but failing to inspect, defective football equipment.

Based on the pleadings of the record before us, the facts are as follows. On October 4, 1974, the plaintiff, who was a varsity football player for Lakeview High School, was seriously injured in a regularly scheduled game at Hanson Park Stadium, owned and operated by the Board. The school football program was voluntary, conducted after regular school hours, encompassed practice and scheduled varsity games, and provided the student participants with equipment, including helmets and face masks. Although admission fees were charged to spectators, the players were not compensated. At the time the circuit court dismissed count I, Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, had only recently been handed down, and the following relevant statutory provisions were in effect: Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 1 — 101 et seq., hereafter Tort Immunity Act), and sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 24 — 24, and 34 — 84a, which applies to cities over 500,000 (Ill. Rev. Stat. 1973, ch. 122, par. 34 — 1)), which are identical in the relevant paragraph and provide:

“Teachers and other certificated educational employees shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.” (Ill. Rev. Stat. 1973, ch. 122, pars. 24-24, 34 — 84a.)

Subsequent to the circuit court’s dismissal but while the appeal was pending in the appellate court, this court decided Gerrity v. Beatty (1978), 71 Ill. 2d 47.

The parties raise only two specific issues before us: whether the coaches here are immune from liability under the School Code in the exercise of inspecting and furnishing defective equipment; and whether the coaches here are immune from liability for negligence under the Tort Immunity Act in the exercise of inspecting and furnishing defective equipment.

In Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, two consolidated cases, the teenage plaintiffs sustained spinal injuries during their physical education classes, brought suit against a school board and a teacher in each case, and alleged negligent failure to provide proper instruction and supervision. (One action was brought under the Tort Immunity Act.) The defendants argued that the plaintiffs failed to state a cause of action because sections 34 — 84a and 24 — 24 of the School Code (Ill. Rev. Stat. 1967, ch. 122, pars. 34-84a, 24-24) require the greater proof of wilful and wanton conduct rather than negligence. Over a dissent, this court held that sections 34 — 84a and 24 — 24 “confer[red] the status in loco parentis in nondisciplinary as well as disciplinary matters” on teachers (63 Ill. 2d 165, 172), and therefore teachers were immune from liability “for negligence arising out of ‘matters relating to the discipline in and conduct of the schools and the school children’ ” (63 Ill. 2d 165, 173); only wilful and wanton conduct destroyed educators’ immunity. Moreover, the court continued, the defendants’ possession of liability insurance coverage would not waive the protection of sections 34 — 84a and 24 — 24 of the School Code, although it would waive immunity under the Tort Immunity Act (Ill. Rev. Stat. 1967, ch. 85, par. 9 — 103(b)). This court so held because the immunity under the School Code was derived from the policy of in loco parentis and not from the Tort Immunity Act, and because the latter act provided that a public entity could not be deprived of “ ‘any defense heretofore existing and not described herein’ ” (63 Ill. 2d 165, 174; Ill. Rev. Stat. 1967, ch. 85, par. 2 — 111), which correctly characterized the immunity of sections 34 — 84a and 24 — 24 of the School Code.

The 15-year-old plaintiff in Gerrity v. Beatty (1978), 71 Ill. 2d 47, suffered severe injuries during a junior-varsity football game, and filed a multicount complaint against the manufacturer of the football helmet, his attending physician, the treating hospital, the city of Downers Grove, and the school district. The appeal before this court involved only the sixth count, alleging negligence by the school district, which was struck by the trial court on the basis of section 34 — 84a of the School Code as construed by Kobylanski. Count VI alleged that the school district negligently allowed the plaintiff to wear an inadequate helmet, negligently refused to furnish adequate football equipment, and negligently furnished the plaintiff with an inadequate and ill-fitting helmet. This court appropriately acknowledged that the “direct, teacher-student” “relationship would be seriously jeopardized if teachers and school districts were amenable to ordinary negligence actions for accidents occurring in the course of the exercise of such authority” (71 Ill. 2d 47, 51). However, after reviewing and analyzing Kobylanski, which it found not controlling, this court stated:

“As distinguished from the foregoing cases, count VI in the case at ]bar did not allege negligence arising out of the teacher-student relationship in matters relating to the teacher’s personal supervision and control of the conduct or physical movement of a student, but instead alleged negligence in connection with what we consider to be the separate function of furnishing equipment which was alleged to be inadequate, ill fitting and defective and which was known, or which in the exercise of ordinary care should have been known, to be liable to cause injury to the plaintiff.” (71 Ill. 2d 47, 52.)

This court continued:

“The public policy considerations in authorizing, and indeed encouraging, teachers to have broad discretion and latitude in the former situation quite clearly do not apply with as much force to the latter. On the contrary, public policy considerations argue rather strongly against any interpretation which would relax a school district's obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose. To hold school districts to the duty of ordinary care in such matters would not be unduly burdensome, nor does it appear to us to be inconsistent with the intended purposes of sections 24 — 24 and 34 — 84a of the School Code.” (Emphasis added.) 71 Ill. 2d 47, 52-53.

The defendants correctly point out that Gerrity did not apply to teachers: teachers and coaches were not parties to that case. The plaintiff urges us to extend Gerrity to individual teachers and coaches, and make them liable for failure to exercise ordinary care in the course of furnishing equipment to students. This we decline to do. First, the school district has the authority to purchase and furnish equipment to students. This authority is not shared with teachers and coaches, who have instead the distinct competence or authority to supervise the students and their use of that equipment. A coach’s duty to inspect the equipment is subsumed within his or her duty to supervise but does not fall under the school district’s authority to furnish. In practice we believe it would be difficult to beneficially and intelligently distinguish inspecting equipment from supervising students and their use of it. Plaintiff’s allegations of negligent conduct, moreover, illustrate this difficulty: they are phrased or described in terms which relate significantly to a teacher’s or coach’s supervisory capacity.

Second, public policy considerations militate against extending Gerrity’s duty of ordinary care to teachers and coaches. In the interest of student-teacher harmony, litigation between them should not be encouraged — absent wilful and wanton conduct. In Illinois, children may not maintain actions for negligence against their parents, although actions involving wilful and wanton conduct are permissible. (Nudd v. Matsoukas (1956), 7 Ill. 2d 608; accord, Mroczynski v. McGrath (1966), 34 Ill. 2d 451, and Kobylanski (63 Ill. 2d 165).) Under sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1973, ch. 122, pars. 24 — 24, 34 — 84a) teachers were found to stand in the place of parents and guardians. Hence, they are immune for negligent actions. Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172-73.

Another public policy consideration which we find relevant is borrowed from the policy consideration in support of the immunity of public employees (Ill. Rev. Stat. 1975, ch. 85, par. 2 — 201 et seq.). If we were to place the duty of ordinary care (while furnishing equipment) on teachers, we would burden them to the extent that a teacher might become immobile in the performance of his obligations. They would “not be free and unhampered in the discharge of their duties, since they would live in fear that each judgment they made would bring a lawsuit.” (Judge, Tort Immunity Act: Only Certain Immunities Are Waived by Public Entity’s Purchase of Insurance, 63 Ill. B.J. 386, 387 (1975).) Moreover, a proliferation of such actions for negligence would drain teachers’ time, encourage second-guessing teachers’ judgment by courts, and quite possibly discourage persons from the career of teaching.

For these reasons, we believe Gerrity should not be extended to the defendants here. Therefore, absent wilful and wanton conduct in the course of their supervisory authority, which encompasses inspecting and supplying the students with equipment, teachers and coaches are immune under sections 24 — 24 and 34 — 84a of the School Code. Kobylanski (63 Ill. 2d 165, 170-71) and Gerrity (71 Ill. 2d 47, 51-52) have clearly indicated that, under those statutory provisions, teachers are not liable for mere negligence in the performance of their supervisory function.

We agree with the appellate court that the defendants here did not lose their immunity under sections 24 — 24 and 34 — 84a because the football program they coached and supervised was an extracurricular activity. The language and reasoning of Kobylanski (63 Ill. 2d 165, 171-72) are clear: “The statutes [Ill. Rev. Stat. 1967 — and 1973, ch. 122, pars. 24 — 24 & 34 — 84a] further indicate that this relationship [i.e., in loco parentis and therefore teacher immunity] applies to all activities in the school program.” 63 Ill. 2d 165, 172.

Having concluded the defendants here are immune under the School Code from liability for ordinary negligence as it relates to plaintiff’s injury for allegedly defective athletic equipment, we need not reach the second issue. See also Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 174.

For these reasons, we reverse the decision of the appellate court and affirm the decision reached by the circuit court, and remand the cause.

Appellate court reversed; circuit court affirmed; cause remanded.


text:
    (No. 50922.
    EUGENE C. SWAGER et al., Appellants, v. PETER J. COURI et al., Appellees.

      Opinion filed October 2, 1979.

      Davis & Morgan, of Peoria (Bret S. Babcock, of counsel), for appellants.
    Bemardi, Ault, & Bode, of East Peoria (C. Brett Bode, of counsel), for appellees.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This action arose out of the brief life and untimely death of an Illinois corporation, Fondulac Nursing Manor, Inc. (Fondulac). The plaintiffs are partners in the architectural firm of Phillips Swager Associates (Swager), which had, pursuant to a contract, rendered services to Fondulac. The defendants, Dr. Peter J. Couri, Jack W. Riley and Carl F. Reardon, were officers, directors and shareholders of Fondulac. The gravamen of plaintiffs’ complaint is that, in dissolving Fondulac, the defendants tortiously interfered with the contractual relationship between Fondulac and Swager. A jury in the circuit court of Peoria County apparently agreed, and returned a verdict for the plaintiffs and against the defendants in the amount of $27,000 actual damages and $111,000 punitive damages. The circuit court entered judgment on that verdict and denied defendants’ post-trial motion, but on appeal, the Appellate Court, Third District, reversed (60 Ill. App. 3d 192), holding that plaintiffs had failed to plead and prove an essential element of the tort alleged, i.e., malice or lack of justification. (See, e.g., H. F. Philipsbom & Co. v. Suson (1974), 59 Ill. 2d 465, 474.) We granted plaintiffs’ petition for leave to appeal, and we now affirm.

Early in 1969, two old friends, Charles Blye, an architect and partner in Swager, and J ack W. Riley, a real estate salesman and broker, met to discuss the possibility of constructing a nursing home in East Peoria. Because of his friendship with Riley, and because the Swager firm previously had been employed by Riley’s co-venturer, Dr. Peter J. Couri, Blye had reason to expect that Swager would be retained as architect for the project although no formal agreement was reached. Accordingly, when Riley told Blye that the proposed site would have to be rezoned to permit construction of a nursing home, Blye agreed to prepare a sketch of the site for use in connection with the necessary zoning change. Blye also appeared with Riley before the East Peoria zoning board. The necessary zoning change was granted, and, on May 22, 1969, Blye met at the site with Couri, Riley and a representative of the State of Illinois in connection with an application for a “certificate of need” from the State for the project. Blye also accompanied Riley in visiting with officials of the Federal Housing Administration (FHA) in Springfield, in connection with an application for financing.

At the May 22 meeting at the site, defendants Couri and Riley told Blye that they planned to put together a group of investors to raise capital for the project, and on July 16, Blye met with such a group at the office of Swager, where Couri asked Blye to serve as architect for the investors.

Sometime in August 1969, Blye, on behalf of Swager, submitted to Couri a “Standard Form of Agreement Between Owner and Architect” (American Institute of Architects, Document B — 131, copyright 1967). It is not clear from the record whether Swager expected Couri to execute the agreement personally, on behalf of a corporation to be formed, or as trustee of a land trust, but, in any event, Couri declined to execute the agreement at that time, despite repeated requests. He later testified that his refusal was .prompted by a desire to first explore the possibility of forming a corporation to undertake the project and, presumably, the contract. Nonetheless, on December 16, 1969, at another meeting held in the offices of Swager, Blye agreed on behalf of Swager to undertake the “schematic design” portion of the project, even though the agreement had not yet been executed.

On March 26, 1970, Couri, as incorporator, filed with the Secretary of State articles of incorporation for the corporation to be known as Fondulac Nursing Manor, Inc. That same day, pursuant to section 48 of the Business Corporation Act (Ill. Rev. Stat. 1969, ch. 32, par. 157.48) (the Act), the Secretary of State issued Fondulac’s certificate of incorporation. Although the certificate of incorporation lists Couri as the sole, original subscriber to shares of Fondulac, he apparently assigned some of his subscription rights to 12 others. The minutes of the initial meeting of directors held on April 22 indicate that the 13 subscribers, who also were the beneficiaries of the land trust which had been established to purchase the land for the project, each caused $100 to be paid for his shares from funds which he had contributed to the land trust. Fondulac thus received its initial capital of $1,300, satisfying the statutory requirement of the receipt of at least $1,000 in initial capital before the commencement of business. Ill. Rev. Stat. 1969, ch. 32, par. 157.42 — 5.

Blye, who attended the meeting on behalf of Swager, informed the directors that Swager already had about $5,000 worth of time invested in the project, but that its fee for this time was subsumed in the overall fee structure of the agreement. The directors ratified Couri’s preincorporation actions as promoter and authorized execution of the agreement with Swager, and Couri executed the agreement on behalf of Fondulac that same day. Blye was, however, told to suspend further work on the project pending the FHA’s approval of the application for financing.

The agreement provided that, unless Fondulac negotiated the construction contract itself (which it did not), Swager’s fee would be equal to 7% of the project’s estimated construction cost, and that, in the event the project was suspended or abandoned, Swager would receive a portion of its fee calculated according to the portion of its work which had been completed. Toward that end, the agreement divided the architectural work into phases, assigning a specified portion of the total job (and, by implication, the total fee) to each phase:

Schematic Design Phase 15%
Design Development Phase 20%
Construction Documents Phase 40%
Bidding or Negotiation Phase 5%
Construction Phase 20%

The agreement also provided for interim payments to Swager to be credited against its fee, and to be calculated at 2Ys times Swager’s “direct personnel expense” in connection with time expended on behalf of Fondulac for the preceding period. However, Swager deliberately billed Fondulac at a lower rate, in an effort to help the project “get underway.”

The project never was completed, however. The FHA apparently never approved the application for financing, and in October 1970 all of the investors except Riley and Couri withdrew. Plaintiffs profferred evidence which, if admitted, might have tended to show that the reason for the investors’ withdrawal was a dispute over the fairness of the price at which Riley and Couri proposed to sell the land for the project, which they owned, to either the land trust or the corporation (Fondulac). Nonetheless, Riley and Couri assured Swager that they intended to bring the project to fruition, and asked for additional time to raise the necessary capital.

Sometime during this period, it is stipulated, Reardon became an officer, director and shareholder of Fondulac. Almost 3 years had passed when, in late August or early September 1973, Reardon met with Blye in the offices of Swager’s attorneys, telling them that Fondulac had been insolvent for 2 years, and either was being dissolved already or would be dissolved shortly. On September 11, 1973, Couri, Riley and Reardon filed with the Secretary of State a “Statement of Intent to Dissolve [Fondulac] by Voluntary Action of the Corporation Pursuant to Section 76 of the ‘Business Corporation Act’.” Although section 79(a) of the Act required that notice of the filing (of the statement of intent to dissolve) “be mailed to each known creditor of the corporation” (Ill. Rev. Stat. 1973, ch. 32, par. 157.79(a)), no such notice was mailed to Swager.

On September 26, 1973, Couri, Riley and Reardon filed articles of dissolution with the Secretary of State. Despite the existence of the debt outstanding to Swager, the articles (which were on a standard, printed form signed and sworn to by Riley, and attested to by Reardon) recited that, as required by section 80 of the Act, “all debts, obligations and liabilities of the corporation have been paid and discharged or that adequate provision has been made therefor.” Ill. Rev. Stat. 1973, ch. 32, par. 157.80.

The defendants eventually did build a nursing home on the same site as that proposed for the Fondulac home, but they used a Nevada corporation, and a different architectural firm. In the meantime, however, Fondulac was dissolved, Swager remained unpaid, and this suit followed.

Plaintiffs’ threshold argument in this court is that the appellate court erred in reviewing the adequacy of their complaint because no objection thereto was made until defendants’ post-trial motion. We disagree. A defendant’s failure to object to the complaint prior to verdict does not completely waive the question of whether the complaint failed to state a cause of action. Rather, such a failure merely changes the standard by which the adequacy of the complaint is determined. (Lasko v. Meier (1946), 394 Ill. 71, 73-74; see also Parrino v. Landon (1956), 8 Ill. 2d 468, 473-75.) “A somewhat liberal rule is frequently applied in construing a declaration or complaint where the objection is made for the first time after verdict or judgment, and it may be sufficient if the facts essential to a cause of action appear by reasonable implication only, or that the allegations are in the form of a legal conclusion which merely implies the necessary material facts. [Citation.] ” [Parrino v. Landon (1956), 8 Ill. 2d 468, 475.) The reason for the above-quoted rule is obvious, upon reflection. If the defendant had filed a timely motion (pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45)) objecting to the pleadings, plaintiff would have had an opportunity to amend the complaint in response thereto. (Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 556; Central Illinois Electric & Gas Co. v. Scully (1959), 17 Ill. 2d 348, 353.) Nonetheless, to hold a defendant liable without notice of the conduct, alleged to give rise to liability, would be an unnecessarily harsh sanction.

Neither of the cases relied upon by plaintiffs, Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 556, and Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 177, supports so harsh a rule. In Berry the circuit court had dismissed the complaint, based on the expiration of what it believed to be the applicable statute of limitations. In defending that dismissal, the defendant sought to allege that the complaint (which was based on breach of warranty under section 2 — 315 of the Uniform Commercial Code (Ill. Rev. Stat. 1965, ch. 26, par. 2 — 315)) failed to allege an essential element of the cause of action (i.e., notice as required by section 2 — 607(3)(a) of the Uniform Commercial Code (Ill. Rev. Stat. 1965, ch. 26, par. 2 — 607)). This court rejected that argument, noting that plaintiffs never had an opportunity to amend their pleadings. Such is not the case however, where, as here, defendants’ challenge comes in a post-trial motion, because even then, the plaintiff may, pursuant to section 46(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 46(3)), amend his complaint to conform to the proof adduced at trial. See First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 8.

Similarly, in Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 175, the appellate court held that where defendants waited until nearly 4 years after the complaint was filed (and 3Yz years after their answer was filed) to claim that plaintiffs failed to allege facts establishing the inadequacy of their remedy at law, and where, in their post-trial motion, defendants merely stated that the complaint failed to allege a cause of action, the defendants waived their objection to the jurisdiction of a court of equity. To the extent that we find the appellate court’s decision persuasive here, we consider it limited to the question of the timeliness of challenges to equity jurisdiction, rather than, as plaintiffs would have us hold, establishing a harsh and far-reaching rule of waiver.

Here, defendants’ post-trial motion alleged not only that the complaint failed to state a cause of action, but also “[t] hat a defendant does not incur liability for intentional interference with contractual relations if he is justified in his interference.” While we agree that, in context, there was some ambiguity as to whether this statement refers to an element of plaintiffs’ cause of action or defendants’ affirmative defense, both the trial court and plaintiffs must be presumed to have known that lack of justification was an element of plaintiffs’ case, not defendants’, and that the above-quoted statement in defendants’ post-trial motion, therefore, must be construed as having adequately brought the issue to the attention of the trial court. Accordingly, we return to the question of the standard by which the complaint must be judged when first challenged in a post-trial motion.

The general rule in Illinois, as exemplified by Lasko v. Meier (1946), 394 Ill. 71, 73-74, was that, under the doctrine of aider by verdict, “[a] verdict will cure not only all formal and purely technical defects and clerical errors in a complaint, but will also cure any defect in failing to allege or in alleging defectively or imperfectly any substantial facts which are essential to a right of action, if the issue joined is such as necessarily requires, on the trial, proof of the facts so omitted or imperfectly stated and if such facts can be implied from the allegations of the complaint by fair and reasonable intendment.” Accordingly, “[t] he question whether a complaint discloses a cause of action is always open to consideration in a court of review. There is a substantial and material difference between a complaint which alleges no cause of action and which may be questioned at any time and one which defectively or imperfectly alleges a cause of action and is good after verdict.” (Emphasis added.) (394 Ill. 71, 75.) The “substantial and material difference” often proved elusive, however, leading this court to observe, 10 years later:

“There are numerous foreign and Illinois cases which have dealt with the problem of whether certain complaints have stated a good cause of action defectively or stated no cause of action at all. A careful analysis of a great many of these cases gives rise to a serious doubt as to the proper basis for decision and one becomes somewhat confused by conflicts that appear irreconcilable. A black or white label can be applied either way. The path of proper direction for future travelers along this course is rendered no less hazardous by compounding the confusion by a mere choice of labels.” Parrino v. Landon (1956), 8 Ill. 2d 468, 471-72.

The court therefore articulated a new standard, holding that where a defendant has allowed the cause to proceed to verdict, scrutiny of the complaint is limited to the question of whether it gave the defendant adequate notice of the facts which the plaintiff would attempt to prove (8 Ill. 2d 468, 473-74), and that legal conclusions, when pleaded, were, for this purpose, sufficient to give the defendant notice of facts necessary to support such conclusions. (8 Ill. 2d 468, 475.) In Porrino the court applied this standard to find that the complaint gave the defendant adequate notice that some form of vicarious liability was alleged, where it alleged a relationship between the defendant and the active tortfeasor but did not allege specific breach of duty on the part of the defendant himself. (8 Ill. 2d 468, 474-75.) Here, where the complaint clearly intended to charge tortious interference with contractual relations, defendants, like the plaintiffs and trial court in reviewing a post-trial motion, must be presumed to be aware that an element of the tort was “lack of justification,” and that facts proving that element would be adduced. Accordingly, we reverse the appellate court’s finding, based on Lasko v. Meier, that the complaint was defective.

Our analysis cannot stop here, however, for it is the judgment, not the reasoning of the appellate court, which is before us, and it is our duty to examine other grounds properly preserved and presented to this court in support of the appellate court’s decision, where it is clear that a remand of the issue to the appellate court would serve no purpose. There is such an alternative ground presented here. Defendants allege that not only was there a complete failure to plead lack of justification, but also a complete lack of proof on this issue at trial, which therefore should have resulted in a judgment n.o.v. in their favor. Specifically, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, they claim that all of the evidence, viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favors the defendants on this question that no contrary verdict based on that evidence could ever stand. We agree.

Tortious interference with contractual relations has a long and colorful history, much of which can be traced in W. Prosser, Torts 927-45 (4th ed. 1971). The seminal decision was handed down in the English case of Lumley v. Gye (1853), 118 Eng. Rep. 749. There, a third party was held liable for “maliciously” inducing an opera singer to break her exclusive contract with a theater owner. Many early American cases sought to invoke the tort to frustrate efforts to organize workers into labor unions for collective bargaining, an application now foreclosed by Federal labor law. (See O. K. Fraenkel, Recent Statutes Affecting Labor Injunctions and Yellow Dog Contracts, 30 Ill. L. Rev. 854 (1936).) The earliest reported case in this court is that of Doremus v. Hennessey (1898), 176 Ill. 608. There, Hennessey conducted a “laundry office” in Chicago, receiving clothes to be laundered, which she in turn forwarded to operating laundries, and which, when returned to her, she delivered to her customers. Because she refused to engage in what today would be called a “price fixing conspiracy” by the Chicago Laundrymen’s Association, the officers of that Association induced the operating laundries to violate their contracts with her. This court, in the era of the enactment of the Sherman Act of 1890 (15 U.S.C. sec. 1 et seq.), and the Illinois antitrust act of 1891 (1891 Ill. Laws 206), had no difficulty in finding the conduct of the officers actionable. But compare Chicago Laundry Owners Association v. American Wet Wash Laundry, Inc. (1934), 276 Ill. App. 604 (abstract), with Cleaning & Dyeing Plant Owners Association v. Sterling Cleaners & Dyers (1936), 285 Ill. App. 336 (common law, rather than statute, held to have prohibited certain restraints of trade in service industries).

Much more difficult questions are posed, however, when a director, officer or shareholder of a corporation is alleged to have tortiously interfered with the corporation’s contractual relations. What may at first blush appear to constitute the misuse of the corporate form as a device to defraud the unwary, may also, on closer inspection, be revealed to involve more subtle questions of the scope of the concept of “limited liability” as it applies to investors and managers of closely held corporations; and of the duties and reasonable expectations of persons negotiating arm’s-length agreements in the robust environment of daily commercial life.

The leading case in this court is that of Loewenthal Securities Co. v. White Paving Co. (1932), 351 Ill. 285, 299-301. In that case, the plaintiff, Loewenthal Securities Company (Loewenthal) was engaged in the business of buying and selling municipal bonds, including local improvement bonds. The defendant, Michael E. White, and his relatives owned all but a few shares of two companies, White Paving Company (Paving) and White Construction Company (Construction). Loewenthal and Paving entered into a contract whereby they agreed that Loewenthal would purchase, at a specified discount, most of the bonds and vouchers issued to Paving by the city of Chicago in payment for Paving’s work on a specified class of projects. Loewenthal had no such agreement with Construction. White, through a subordinate, told an officer of Loewenthal that unless Loewenthal agreed to waive its rights under the agreement with respect to any securities issued in connection with the new Broadway sewer project; Paving would refuse to bid on the project, but Construction would bid. Loewenthal refused to waive its rights under the agreement; Paving refused to bid; Construction got the job (and gave very little subcontracting work to Paving), and Loewenthal charged that White and others had tortiously interfered with its contractual relationship with Paving. This court disagreed.

The court first noted that neither White nor Construction was a party to the contract and bound thereby. (351 Ill. 285, 295.) The court next noted that Paving had neither expressly nor impliedly promised to bid on any particular project (nor was it particularly well suited to complete the Broadway sewer project) and that therefore no contractual relationship had been interfered with, tortiously or otherwise. (351 Ill. 285, 297-99.) Finally, the court reached an alternative argument, desiring to make clear that “[a] side from this, however, the evidence in this record cannot sustain the decree on the theory of a tort cause of action for damages.” (351 Ill. 285, 299.) “White and the other officers of the two defendant corporations, who were responsible for the failure of the paving company to submit a bid and for inducing the construction company to bid, were not outsiders intermeddling maliciously in the contracts or affairs of other parties. They were privileged, as other corporate officers, to act for their corporations in accordance with their business judgment and discretion.” (351 Ill. 285, 300.) Loewenthal therefore held that corporate officers who, “in accordance with their business judgment and discretion,” interfere with their corporation’s contractual relations lack the requisite “malice” and therefore are not liable in tort. 351 Ill. 285, 300.

As this court observed in H. F. Philipsborn & Co. v. Suson (1975), 59 Ill. 2d 465, 474, “[A] corporate officer may, for a proper business purpose and in good faith, influence the actions of the corporation. (Loewenthal Securities Co. v. White Paving Co., 351 Ill. 285.)” Thus, to be tortious, a corporate officer’s inducement of his corporation’s breach of contract must be done “without justification or maliciously” (59 Ill. 2d 465, 474). In Philipsbom, where the defendant officer sought to obtain a loan for his corporation on better terms than those in the contract allegedly broken, the requisite malice or lack of justification was held to be lacking. See also Petit v. Cuneo (1937), 290 Ill. App. 16 (stockholder influenced directors to reduce plaintiff’s compensation).

Plaintiffs, however, would have us construe Loewenthal and Philipsbom very narrowly, claiming that the privilege of a corporate officer to exercise “business judgment and discretion” does not apply to the defendants’ decision to dissolve Fondulac. We disagree.

The purpose of imposing liability in tort upon persons who interfere with the contractual relations of others is to protect one’s interest in his contractual relations against forms of interference which, on balance, the law finds repugnant. (See Doremus v. Hennessy (1898), 176 Ill. 608, 615.) This statement of the tort’s purpose itself sows the seeds of the further analysis necessary to determine whether particular conduct ought to give rise to liability. The question presented, therefore, is whether protection of the particular contractual interest at issue merits prohibition of the particular conduct at issue. See generally Restatement (Second) of Torts sec. 767 (1979). Accord A. Avins, Liability for Inducing a Corporation to Breach Its Contract, 43 Cornell L.Q. 55, 57-64 (1957).

Viewed in this light, it is relatively easy to see why we find the plaintiffs reliance upon, for example, W. P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill. App. 2d 404, both unpersuasive and misplaced. Iverson purported to limit the right of shareholders to influence the management of their corporation only to that influence exerted “in good faith,” claiming that “[i]t was not lawful if it was maliciously exerted in order that the corporation might escape the obligation of a contract.” (18 Ill. App. 2d 404, 419, relying upon Republic of Italy v. De Angelis (2d Cir. 1953), 206 F.2d 121 (Clark, J., concurring).) This so-called “exception” to the limited liability of corporate shareholders for corporate contractual obligations is an exception which would quickly swallow the rule itself in the case of most closely held corporations. Further research indicates that while certain Federal courts have done so, this court has never relied upon Iverson nor, for that matter, even cited it, in the 20 years since it was decided.

To distinguish between actions “in the corporate interest” and actions “in the shareholders’ interest” when defining the scope of the directors’ privilege to influence the action of their corporation would be to create a duty to the corporation’s contract creditors which would take precedence over their duty to their shareholders. This we decline to do. (See generally A. Avins, Liability for Inducing a Corporation to Breach Its Contract, 43 Cornell L.Q. 55, 64 (1957).) At least in the context of the corporate officers’, directors’ and shareholders’ privilege to influence the actions of their corporation, death is just another part of life, and the rights and duties of the parties to the dissolution of an Illinois corporation are normally defined by the Business Corporation Act, not by the common law of torts.

Defendants’ liability under the Act bears little resemblance to that which plaintiffs seek to impose in this case. For example, under section 42.3 of the Act (Ill. Rev. Stat. 1971, ch. 32, par. 157.42 — 3) a corporation may recover from directors any assets improperly distributed upon dissolution. Here, even if the defendants did receive any corporate assets (their testimony on this point is somewhat vague and inconsistent), the most they could have received was some portion of the corporation’s initial capital of $1,300, which, under section 42.3 therefore also would have been the measure of their liability. Plaintiffs, however, seek to impose liability in tort in excess of 100 times the defendants’ statutory liability.

Similarly, defendants’ liability under section 42.6 of the Business Corporation Act (Ill. Rev. Stat. 1973, ch. 32, par. 157.42 — 6) for failure to send plaintiffs written notice of the proposed dissolution is limited to any harm caused by such lack of notice. No such harm has been demonstrated here, where plaintiffs had actual notice of the dissolution. Even if any harm was caused, it, too, on this record, was limited to the value of the assets, if any, improperly distributed upon dissolution.

Finally, defendants actions in signing and swearing to the truth of the contents of a standard form containing an inaccurate statement as to provisions for the satisfaction of the corporation’s debts do not support the liability here sought to be imposed. Even if this statutory provision were held to provide the basis for an implied cause of action in tort (an issue not properly before us), the liability thereby imposed would, in light of the overall statutory scheme, be limited to the actual damages caused by the false statement. Again, no such damage was caused here, where the continued existence of the corporation would have left the plaintiffs in no better position than they stand today.

This is not an unfair result. The plaintiffs were intimately familiar with the genealogy of the thinly capitalized corporation to which they would have to look for their fee. They knew that defendant Couri had expressly refused to assume personal liability on the contract. In the hope of earning a very substantial fee, the plaintiffs took a very substantial risk on the success of a highly speculative venture, and on the character of the defendants. That their judgment apparently was wrong on both counts is not a basis for liability in tort.

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

Judgment affirmed.