text:
    (No. 49983.

      In re JOSEPH L. DOMBROWSKI, Attorney, Respondent.

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    Jack Toporek, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    George B. Collins, of Collins & Amos, of Chicago, for respondent.
   MR. JUSTICE RYAN

delivered the opinion of the court:

On June 23, 1976, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging Joseph L. Dombrowski with conduct unbecoming an attorney, which tends to defeat the administration of justice and bring the legal profession into disrepute. The complaint alleged that he settled a personal injury case contrary to the client’s wishes and signed her name to the release and settlement draft without her authorization. In addition, the complaint alleged that he falsely represented to the inquiry panel that he had acted pursuant to a valid power of attorney signed by his client, while, in reality, he had actually signed her name to the power of attorney. The hearing panel concluded that the evidence sustained the allegations of the complaint. Its findings and recommendation of 18 months’ suspension from practice were affirmed by the Review Board.

The acts complained of arose from Dombrowski’s representation of Virginia Finley. In early February 1972, Mrs. Finley was allegedly injured while a passenger on an Amtrak train traveling over track owned by the Louisville and Nashville Railroad. She claimed that while she was in the washroom, the train had passed over a rough section of track and she was jolted, resulting in her injuries. A short time later, she entered into a verbal agreement with Dombrowski on a one-third-contingency-fee basis to prosecute a personal injury claim against the railroad. Dombrowski sent her to two doctors and entered into negotiations with the Louisville and Nashville Railroad. In June or July 1973, a representative of the railroad came to his office and offered $1,000 to settle the case. Dombrowski telephoned Mrs. Finley and notified her of the offer. On his recommendation, she agreed to the settlement. The railroad’s adjuster assented and left releases with Dombrowski to be signed by Mrs. Finley. In July 1973, Dombrowski requested that Mrs. Finley come to his office to discuss the settlement. She did so, and Dombrowski, for the first time, explained that after paying medical bills and deducting his fee, she would only receive $244. Mrs. Finley was not satisfied. She believed she would receive the entire $1,000, and refused to sign the release, stating that she wanted more money. Dombrowski informed her that if she was unhappy with the offer, he would file suit upon her payment of $200 for court costs. She declined, stating that she did not have $200, nor would she have $200 in the future.

Subsequent to this meeting, Dombrowski sent Mrs. Finley several postcards which went unanswered. He also called her and asked what she wanted him to do about the case. According to him, she refused to give any instructions. On October 15, 1973, Dombrowski signed her name to the release and sent it to the railroad. He subsequently received a settlement draft of $1,000 payable to himself and Mrs. Finley, and also signed her name on the back of the draft before depositing it in a fiduciary account. He failed to notify Mrs. Finley of the recovery, but later transferred the funds to an interest-bearing account.

On February 7, 1974, Mrs. Finley filed a complaint against Dombrowski with the attorney disciplinary system. On February 22, 1974, Dombrowski sent a letter to the Attorney Registration and Disciplinary Commission explaining that Mrs. Finley agreed to settle for $1,000 on his recommendation but, after settlement was effected, complained bitterly and refused to accept distribution of her portion of the proceeds. On July 19, 1974, Dombrowski appeared before a panel of the Inquiry Board. In response to questioning, Dombrowski asserted that he had signed Mrs. Finley’s name to the release and settlement draft pursuant to a power of attorney signed by Mrs. Finley. He showed the panel copies of three different documents which constitute his “take-in” package for new clients: A statement concerning the nature of the claim and that the client had not been solicited, a retainer agreement for a one-third contingent fee, and a power of attorney. The retainer agreement and the power of attorney were dated February 14, 1972, and all three documents contained the purported signatures of both Dombrowski and Mrs. Finley. After the hearing, the Administrator’s office asked to see the original power of attorney. As Dombrowski later testified, he examined the original and realized for the first time that it was signed not by Mrs. Finley, but by himself. In April 1975 he notified the Attorney Registration and Disciplinary Commission of this fact and also appended a report of a polygraph test indicating he had been previously unaware that he had signed Mrs. Finley’s name.

Dombrowski was the only witness to testify before the Hearing Board. He testified that Mrs. Finley orally agreed to the settlement during their telephone conversation in June or July 1973, but later expressed dissatisfaction when she learned that she would only receive $244 of the $1,000 settlement. He stated that she refused to sign a release or give him further instructions. He indicated that he had concluded from the facts that there was no liability and that from the medical reports $1,000 was a sufficient amount for the injuries. According to Dombrowski’s testimony, he examined Mrs. Finley’s file in October 1973 and noticed the power of attorney which he assumed was signed by her. Even though he knew she was dissatisfied with the settlement offer, he believed that he was authorized to sign her name to the release and draft by the power of attorney. He further stated that he only acted to protect her interests since the statute of limitations was to run out in February 1974.

Dombrowski also attempted to explain his misrepresentation to the Inquiry Board. He asserted that he only became aware that Mrs. Finley had not signed the power of attorney when the Administrator asked to see the original copy. The polygraph report he submitted to substantiate this fact was not admitted into evidence by the board. Upon questioning, Dombrowski stated that he must have signed Mrs. Finley’s name to the documents at some time after February 14, 1972, and before he appeared before the inquiry panel, although he was unable to recall the exact date.

In its report, the Hearing Board held that Dombrowski had acted improperly by settling contrary to the wishes of his client and in signing her name to the release without authority. However, the board specifically held that the Administrator had failed to prove that Dombrowski prepared the power of attorney in order to mislead the Inquiry Board, or that he knew Mrs. Finley had not signed it when he presented it to the board. It noted that Dombrowski had specialized in the personal injury field for 10 years with no other charge of impropriety. It recommended a suspension from practice for 18 months. In August 1977 the Review Board affirmed the Hearing Board.

In his brief to this court, Dombrowski characterizes this case as a disagreement over the division of the settlement. He argues that Mrs. Finley initially agreed to the settlement in June or July 1972 and only disagreed over the amount of her net recovery. We disagree with Dombrowski’s interpretation of this case. This is not a situation where a lawyer settles pursuant to authorizátion by the client and later has a disagreement over distribution. While Mrs. Finley initially agreed to the settlement, the record clearly shows that once she learned what her net recovery would be, she refused to settle or sign the necessary release. We have previously held that unauthorized settlement and endorsement of releases or drafts without authority is improper. (See In re Di Bella (1974), 58 Ill. 2d 5; In re Agin (1970), 45 Ill. 2d 126; In re Gavin (1961), 21 Ill. 2d 237; In re Ashbach (1958), 13 Ill. 2d 411.) While Dombrowski’s assertion that Mrs. Finley was difficult to deal with and unreasonable in refusing settlement may be correct, this is no excuse for his actions in settling and signing release documents in direct contradiction to her wishes.

In addition, we condemn Dombrowski’s reliance on the power of attorney as authority for his actions. Whether or not Dombrowski believed that Mrs. Finley had signed it was irrelevant; her actions clearly indicated that the proposed settlement was not satisfactory to her. In light of this knowledge, even if the power of attorney were valid, his acts in signing her name to the release and settlement draft were clearly an abuse of the authority conferred by the power of attorney. As was stated in In re Gavin (1961), 21 Ill. 2d 237, 245:

“Respondent was dealing with a difficult person who was not satisfied with the proposed settlement of her claim. It was extremely unwise for him to find refuge in the disputed power of attorney and undertake to force Mrs. Tree to accept the settlement he had made for her. Respondent’s explanation for the power of attorney in this case is a plausible one, but it is a practice that should be avoided since it is so readily susceptible of abuse.”

That case is also a less serious situation than the present case. In Gavin, there was substantial evidence that the client had, in fact, signed the power of attorney. In the present case, Dombrowski concedes that Mrs. Finley never signed it and was unaware of its existence.

Dombrowski also asserts that his actions were motivated by a good-faith attempt to safeguard Mrs. Finley’s interest, since the statute of limitations was to run out in February 1974. The record clearly shows, however, that when Dombrowski executed the release in October 1973 almost four months remained before the statute of limitations would have run. As the Administrator and the Hearing Board pointed out, he had the option of withdrawing from the case, filing suit, referring Mrs. Finley to another attorney, or filing suit and then withdrawing from the case. Any of the actions would have protected Mrs. Finley’s rights; instead, he chose to act directly contrary to Mrs. Finley’s wishes. In light of this flagrant disregard of his client’s rights and his unauthorized actions in signing her name to the various documents, especially the power of attorney, we must agree that Dombrowski breached his professional obligations and engaged in conduct unbecoming a member of the legal profession.

In his brief, Dombrowski also contends that the 18-month suspension recommended by the Hearing Board and Review Board is inappropriate in view of the nature of and motive for his behavior. He points out that no other charges have been filed against him in the 10 years he has been practicing law and also emphasizes that he did not misuse any of the funds and thus Mrs. Finley has suffered no loss.

The Administrator cites In re Agin (1970), 45 Ill. 2d 126, in support of his request for an 18-month suspension. In that case, the attorney settled a personal injury claim for approximately one-half of the amount desired by his client without the client’s knowledge or consent. Several years later, the client discovered that the case had been settled. He then demanded and received from the attorney the entire sum he had originally requested. At the disciplinary hearing, the attorney testified that he paid the client the entire sum demanded because the client attempted to blackmail him by threatening to allege forgery on settlement checks. This court there held that the attorney’s testimony was unworthy of belief, and suspended him from practice for one year.

Several other cases, while not identical, are sufficiently analogous for comparison with the instant case on the question of appropriate discipline. In In re Gavin, cited above, one count of the complaint charged the attorney, Gavin, with effecting settlement, executing releases, and signing a settlement draft without the consent or authority of his client, Mrs. Florence Tree. Gavin claimed that after Mrs. Tree refused to accept the settlement offer, he settled the case pursuant to a written power of attorney. Although Mrs. Tree testified she had not signed a power of attorney, she admitted the signature looked like hers, and it appears that it was validly executed. Gavin testified that, after he received the settlement draft, he asked Mrs. Tree to come to his office. She failed to do so, he sent her a check for her share of the proceeds, and she returned it. According to Mrs. Tree, several months after she refused to settle, the tortfeasor’s insurer notified her that the case had been settled, releases . signed, and the draft cashed. This court noted that Gavin’s testimony was corroborated by several witnesses and held that, while he had acted improperly, he had not engaged in conduct involving moral turpitude. Thus, the court stated that censure was appropriate discipline.

In In re Di Bella (1974), 58 Ill. 2d 5, the client, Miss McGinnis, refused a $22,000 settlement offer for personal injury. Her attorney, Di Bella, subsequently signed her name to releases, endorsed a draft with both his signature and her signature, and cashed it, all without her knowledge or consent. Di Bella failed to notify her of the settlement and, in fact, misappropriated the proceeds. When she later discovered what had occurred, she demanded $33,772 from Di Bella. He tendered a check for $17,871, representing the settlement amount less his attorney’s fee, and Miss McGinnis filed a complaint with the Chicago Bar Association. In that case, this court ordered the attorney suspended from practice for three years.

In comparing these cases with the instant case, we believe that the seriousness of Dombrowski’s conduct falls somewhere between the misconduct in Gavin and that in Di Bella. While Dombrowski did not misappropriate any of the settlement proceeds, it is clear that he settled contrary to his client’s wishes. He signed her name to three different “take-in” documents, including a power of attorney without authority, and then, purporting to rely on the power of attorney, also signed her name to a release and settlement draft. We also note that the signatures of Mrs. Finley’s name on the “take-in” documents, release and settlement drafts appear to have been written in different handwriting than his own signature on the same documents. In fact, his own signature and the signature purporting to be Mrs. Finley’s are written in different color ink on the take-in documents.

We believe that the respondent’s misconduct in flagrantly disregarding his client’s instructions and his unauthorized signing of her name to various documents, including the power of attorney and release, warrants suspension from practice for a period of 1 year. We again wish to emphasize, as this court did in Gavin, that a power of attorney, even if validly executed by the client, may not be used by the attorney to circumvent the expressed wishes of the client by forcing settlement. Accordingly, we suspend the respondent from the practice of law in this State for a period of 1 year.

Respondent suspended.

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


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 50138.
    KEYSTONE STEEL & WIRE CO., Appellee, v. THE INDUSTRIAL COMMISSION et al.-(Mable F. Bitner, Appellant.)

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    S tro del & Kingery, Assoc., of Peoria (Arthur R. Kingery and Edward R. Durree, of counsel), for appellant.
    Tim Swain and Gregory S. Bell, of Swain, Johnson & Card, of Peoria, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The circuit court of Peoria County set aside the award of the Industrial Commission in this case, on the ground that the Industrial Commission’s finding of a causal connection between the death of claimant’s decedent, Archie Bitner, and Bitner’s employment was against the manifest weight of the evidence. We disagree, and accordingly we reverse the judgment of the circuit court and reinstate the award of the Industrial Commission.

Bitner had been employed by Keystone Steel 8c Wire Co. for 33 years at the time of his death. His final job was that of “wire drawer,” which involved positioning coils of quarter-inch rod (the stock from which wires are drawn) weighing up to 1,110 pounds when full, and up to 250 pounds when empty. The decedent used a power hoist to lift the reels, but had to move the hoist and reel as far as 22 feet horizontally along tracks, using only his own physical strength. The wheels of the hoist frequently became jammed when moving along the tracks and had to be freed, again using only decedent’s own strength. Decedent also was required to use his own physical exertion to stop the spinning of the empty reels.

On April 10, 1973, decedent’s final day at work, he evidently planned to sign his retirement papers at the end of the day. However, at approximately 1:15 p.m., a co-worker discovered him slumped in a sitting position. Decedent was taken to the hospital, where he died nine days later.

It is undisputed that decedent died as the result of a stroke involving the rupture of a cerebral artery. It also is undisputed that certain diseases (which may or may not be work related), such as chronic hypertension, can increase blood pressure and can weaken such arteries, making them more likely to rupture. However, it is further undisputed that physical exertion of the type required by decedent’s employment can increase blood pressure.

This was sufficient evidence upon which the Industrial Commission could base a finding that decedent’s employment subjected him to stresses which would, on occasion, increase his blood pressure substantially beyond the level it would have reached but for those stresses (cf. County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24), and that such stresses exceeded those to which all persons are normally exposed outside the course of their employment (cf. County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10).

Though claimant’s expert and respondent’s experts disagreed as to whether the work-related increased blood pressure could have or did cause the rupture of a blood vessel which would not have ruptured in the absence of such increased blood pressure, the evaluation of the credibility and weight to be accorded the testimony of conflicting experts is a question for the Industrial Commission, and the circuit court may not set aside that resolution unless it is against the manifest weight of the evidence. E.g., Moore v. Industrial Com. (1975), 60 Ill. 2d 197, 203.

Here, the Commission’s decision was not against the manifest weight of the evidence, and Keystone’s arguments to the contrary are completely without merit. For example, Keystone points out that Dr. Horacio Rivero (claimant’s expert) admitted that, in some cases, any activity can cause a stroke. Keystone then argues that this admission seriously impeached the credibility of Dr. Rivero’s conclusion that, on the facts of this case, decedent’s employment was a causal factor in this stroke. The weakness of Keystone’s argument is demonstrated by the testimony of Keystone’s own expert (Dr. Paul Palmer) who reached a substantially similar conclusion. (Cf. County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10.) Keystone also argues that Dr. Rivero’s credibility was seriously impeached by his first stating that “it is not known that any type of work will cause hypertension” and later stating that he believed that Bitner’s employment was a causal factor in his hypertension. The problems with this argument are twofold: First, Keystone has omitted the words “per se” from Dr. Rivero’s earlier statement. Thus, in context, it is clear that Dr. Rivero’s earlier statement was limited to the question of whether a direct causal relationship ever had been scientifically demonstrated between hypertension and employment. Second, Dr. Rivero’s second statement was limited to whether he believed that, on the facts of this case, decedent’s hypertension was work related. He did not require the aid of a prior scientific study to reach this conclusion, and, accordingly, his credibility was not necessarily impeached thereby.

For the foregoing reasons, the judgment of the circuit court is reversed, and the award of the Industrial Commission is reinstated.

Judgment reversed; award reinstated.

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


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 49748.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STERLING HEIL, Appellee.

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of JBelleville (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, of Chicago, and James E. Hinterlong and Linda M. Yodar, of the State’s Attorneys’ Appellate Service Commission, o.f Ottawa, of counsel), for the People.
    Michael J. Rosborough, Deputy Defender, and John H. Reid, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of St. Clair County, defendant, Sterling Heil, was convicted of the offense of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1973, ch. 56½, par. 1401(b)), sentenced to three years’ probation and fined $500. The appellate court reversed (49 Ill. App. 3d 55), and we allowed the People’s petition for leave to appeal.

The indictment upon which defendant was tried was returned on February 7, 1974, and on February 28, 1974, defendant made a demand for speedy trial (Ill. Rev. Stat. 1973, ch. 38, par. 103-5(b)). On October 23, 1974, defendant filed, and the circuit court allowed, a “petition for discharge based on statutory right for speedy trial.” On the following day the People filed a motion “to set aside and expunge order granting defendant’s petition for discharge.” On October 25, 1974, defendant’s bail was discharged and the circuit clerk issued a check refunding the bail deposit to defendant’s attorney. Following a hearing held on October 29, 1974, the circuit court allowed the People’s motion, vacated its original order, and set the case for trial.

In reversing the judgment, the appellate court held that although at the time when it considered the People’s motion to vacate the order of discharge the circuit court had jurisdiction over the subject matter, that “Once the trial court entered the appealable order of discharge, it was binding and conclusive of the matter which had been in controversy and it operated to preclude a readjudication thereof.” 49 Ill. App. 3d 55, 60.

The People contend that for a period of 30 days following the entry of its order the circuit court was vested with plenary power to vacate, modify or reconsider that order. It argues that although, concededly, the order discharging defendant was appealable, public policy “favors the correction of errors at the trial level.”

Defendant contends that the hearing on the People’s motion resulted in a retrial and readjudication of the issues decided by the original order and that the People, rather than filing a motion to set aside the order discharging defendant, should have sought appellate review. He argues that the People “either declined or neglected to present all its evidence and case law” at the time of the original hearing and that the piecemeal approach followed here “is both repugnant to the efficient administration of justice and fundamentally unfair to the defendant.” Alternatively, defendant argues that “the trial court lacked the power to vacate its discharge order where it had previously-been executed in its entirety.”

The relevant statutes, and the rules promulgated by this court, demonstrate the intent that in criminal as well as civil matters the circuit court be given the opportunity to reconsider final appealable judgments and orders within 30 days of their entry. (See, e.g., Ill. Rev. Stat. 1977, ch. 38, pars. 116-1, 116-2, 1005-8-1(d); 58 Ill. 2d Rules 604(d), 605(b), 606(b).) We have examined the authorities cited by defendant in support of his contention that the only avenue open to the People was that of appeal, and find them clearly distinguishable. In none of these cases did the court consider the question presented here. People v. Taylor (1971), 50 Ill. 2d 136, involved an indictment based upon the same circumstances and evidence concerning which an order had previously been entered quashing a search warrant and suppressing evidence. People ex rel. MacMillian v. Napoli (1966), 35 Ill. 2d 80, involved a situation factually similar to Taylor, and People v. Quintana (1967), 36 Ill. 2d 369, involved a later reindictment for the same offense for which the defendant had previously been discharged for failure to accord him a speedy trial. We find nothing in these cases which would support the contention that a party entitled to appeal from an order entered by the circuit court should be deprived of the opportunity to seek correction of the alleged error by means of a motion timely filed in the circuit court.

Defendant’s alternative argument is based on the contention that because the order of discharge “had previously been executed in its entirety” the circuit court was without jurisdiction to vacate it. It is true that in earlier decisions of this court it was held that when a judgment had been “executed,” the court was without power to set it aside even within the 30-day period during which it admittedly had jurisdiction to review and modify its orders. (See People v. Lance (1962), 25 Ill. 2d 455, 456; People v. Wakeland (1958), 15 Ill. 2d 265, 269.) This rule was first enunciated in People ex rel. Lucey v. Turney (1916), 273 Ill. 546. Although at that time the statutes provided for the filing of a motion for new trial (Hurd’s Rev. Stat. 1913, ch. 110, par. 81) and to set aside a judgment (Hurd’s Rev. Stat. 1913, ch. 110, par. 58), the court, observing that it was unable to find that “the precise question” had previously been decided, held that because the judgment had been executed, the trial court was without power to vacate it. The court said:

“The respondent bases the right to vacate the judgment, where motion to vacate has been made during the term and continued, upon the general proposition that a court of record has power, during the term at which a judgment is entered, to vacate such judgment. It is true that under the common law the court had complete control over its records during the term, and, as a general rule, it might revoke or alter judgments or substitute new judgments in the place of those theretofore rendered, and section 58 of our Practice act provides that the court may, in its discretion, during the term, set aside any judgment upon good and sufficient cause, upon affidavit, upon such terms and conditions as shall be deemed reasonable. It is insisted that this rule applies to judgments in criminal cases as well as in civil cases. The rule does apply in criminal cases the same as in civil cases so long as the judgment remains unexecuted. The common law rule was founded upon the theory that no judgment became final until the adjournment of the term, as the roll was not completed and signed until that time, and until the roll was completed and signed all matters remained in the breast of the court. Under the practice in this State it is customary, upon the completion of a criminal trial wherein a verdict of guilty is returned, to enter judgment at once, to pass sentence upon the defendant and to issue a warrant or mittimus to the proper officer in cases where imprisonment is a part of the sentence. When the cause has been thus concluded and the prisoner has been committed to the custody of the proper officer of the penitentiary or reformatory the jurisdiction of the trial court ceases, first, because the defendant has entered upon the execution of his sentence; and second, because the court has lost jurisdiction of the person of the defendant.” (273 Ill. 546, 553-54.)

The rationale for this holding was that the defendant, charged with a felony, had a “constitutional and common law right” to appear in person at the hearing on the motion to vacate the judgment, and that if he insisted upon the right, the superintendent of the prison where he was incarcerated, being bound to keep him there, had no power to release him or produce him in court for that purpose. (But see People v. Berry (1967), 37 Ill. 2d 329, 334, holding that defendant has no constitutional right to be present at the argument on a post-trial motion.) Whether the rationale of Turney continues to be valid we need not and do not decide for the reason that defendant was not incarcerated, and clearly there was no impediment to his being present at the time of the hearing on the People’s motion.

We conclude that the circuit court did not err in considering the People’s motion filed within 30 days of the entry of its original order. The question whether the original order of discharge was correctly entered was not before the appellate court, is not before this court, and we do not decide that question. Defendant has made no other assignments of error either in the appellate court or in this court. For the reasons stated the judgment of the appellate court is reversed and the judgment of the circuit court affirmed.

Appellate court reversed; circuit court affirmed.

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


author: MR. JUSTICE MORAN

text:
    (Nos. 50017, 50019 cons.
    FURLONG CONSTRUCTION COMPANY, INC., Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al.—(Gary Blackmore, Appellee and Cross-Appellant.)

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    Costigan & Wollrab, of Bloomington (Guy C. Fraker, of counsel), for appellant.
    Lester Berry Smith, Ltd., of Peoria (Patrick T. Moos and Henry A. Schmitt, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of McLean County confirmed in part and set aside in part an order of the Industrial Commission which had awarded claimant, Gary Blackmore, temporary total disability compensation and payment for medical services. Pursuant to Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)), respondent, Furlong Construction Company, appeals from that portion of the circuit court’s judgment which confirmed the award of compensation. Claimant cross-appeals from that portion of the circuit court’s judgment which disallowed payment for certain medical services and remanded the cause to the Industrial Commission for a redetermination of the amount to be awarded for medical services.

Claimant suffered a work-related back injury while lifting a piece of heavy metal on November 8, 1973. Following unsuccessful treatment by several chiropractors, claimant was referred to Dr. John Wright, an orthopedic surgeon. Dr. Wright first examined claimant on December 21, 1973, at which time he tentatively diagnosed claimant’s disability as an acute lumbosacral strain associated with a joint spondylolisthesis, i.e., an aggravation of an unstable back joint. X rays taken at that time showed a bilateral spondylolisthesis in the L5-S1 region of the back. Rest and medication were prescribed. A myelogram, later performed on claimant’s back, indicated the possibility of a ruptured disc. On January 14, 1974, Dr. Wright performed a hemilaminectomy which revealed no ruptured disc, but did disclose a cyst in an opening at the first sacral vertebra. No further surgery was performed at that time.

Claimant was discharged from the hospital on January 23, and, although the pain in his back and legs substantially lessened, he continued to experience discomfort which prevented him from returning to work.

In early March of 1974, a sudden increase of pain and numbness in claimant’s legs required that he be hospitalized. Dr. Wright diagnosed claimant’s condition at that time as a “recurrent Iumbo-sacral strain in the region of the sacral cyst.” Dr. Wright, however, was unable to determine whether the claimant’s pain was attributable to the cyst or to the lumbosacral strain.

In April of 1974, claimant complained of having difficulty walking, and Dr. Wright again ordered claimant hospitalized. A biopsy, performed to identify the nature and character of the cyst, revealed that the cyst had grown during the period since January. Medical reports described the cyst as a large destructive lesion of the sacrum and indicated that its growth was stretching the bladder and lower bowel. Dr. Wright diagnosed the cyst as a “benign unicameral bone cyst.”

Claimant was thereafter referred to Mayo Clinic for further treatment of the cyst. (At the time of the hearing before the Commission, claimant’s treatments at Mayo Clinic were continuing.) Despite various treatments, including 25 cobalt treatments, claimant continued to experience pain in his back and legs.

At the arbitration hearing, depositions of Drs. John Wright and Gordon Schultz (the latter a doctor who examined claimant at respondent’s request) were jointly introduced into evidence. Dr. Wright testified that the cyst was not caused by the accident on November 8, and that trauma neither aggravated nor accelerated the cyst’s growth. In Wright’s opinion, the cyst predated the injury. He testified, however, that the accident did, in fact, aggravate claimant’s unstable back joint, and thus caused the claimant to suffer pain and discomfort. According to Wright, claimant’s aggravated spondylolisthesis was still present in April, but Wright attributed claimant’s leg pain at that time to the cystic condition.

Dr. Gordon Schultz testified that in October of 1974 claimant was suffering from a cystic condition with underlying spondylolisthesis. Dr. Schultz stated that, medically, it was only vaguely possible to begin to distinguish the degree of disability attributable to the cyst and the degree attributable to the aggravated spondyIolisthesis. In his opinion, the neurologic condition in the legs was attributable to the cyst, while the pain in the back might be attributable to the cyst or the spondylolisthesis, or both. He stated that the accident did not cause the cyst. Schultz also indicated that trauma could fracture a cyst or tumor but would not cause the cyst or tumor to grow, and, on the basis of medical records and X rays presented to him, Schultz concluded that there was no evidence that the cyst had been fractured.

A Mayo Clinic medical report, jointly introduced into evidence, diagnosed the cyst as a giant cell tumor and indicated there was no causal relationship between the accident and the presence of the tumor.

Respondent does not dispute the fact that the claimant suffered an injury to his back in a work-related accident or that he was thereafter temporarily disabled. Rather, the respondent argues that the medical evidence affirmatively establishes that the disability suffered by the claimant after March of 1974 was not causally related to the accident and, therefore, is noncompensable. Claimant, on the other hand, argues that the chain of events prior to and subsequent to the accident, together with medical evidence, supports the Commission’s finding of causation, and is, therefore, sufficient to sustain the Commission’s entire award. He further argues that, inasmuch as there is a causal connection, all medical bills incurred are recoverable.

This court has held that evidence of a state of good health prior to a work-related injury and of a subsequent state of disability competently tends to establish that the impaired condition was due to the injury. (Union Starch & Refining Co. v. Industrial Com. (1967), 37 Ill. 2d 139, 143.) Such evidence, however, is insufficient to sustain an award where, as here, the uncontroverted medical testimony indicated that there was no causal connection between the cyst and the injury. (Osco Drug, Inc. v. Industrial Com. (1967), 36 Ill. 2d 361, 368-69; Jenks v. Industrial Com. (1963), 29 Ill. 2d 440, 445-46; Standard Oil Co. v. Industrial Com. (1930), 339 Ill. 252.) Dr. Wright, claimant’s own treating physician, unequivocally stated that the accident neither caused nor aggravated the cyst. Dr. Schultz also testified that the accident did not cause the cyst or cause it to grow. Medical testimony, therefore, clearly established that there was no causal connection between the accident and the development of the cyst.

An employer is not liable for the condition caused by a subsequent disability unless it can be shown that the existing work-related disability is a causative factor in producing the subsequent condition. (International Harvester Co. v. Industrial Com. (1970), 46 Ill. 2d 238, 247.) Here, there was no such showing.

This lack of causal connection does not, however, preclude the claimant from being compensated for the disability that is attributable to the work-related injury. (Bunge Bros. Coal Co. v. Industrial Com. (1923), 306 Ill. 582; 1 T. Angerstein, Illinois Workmen’s Compensation, sec. 495 (rev. ed. 1952).) In Bunge, the employee suffered from a venereal disease which aggravated and prolonged the effect of a prior work-related injury. The court held that, although the venereal disease was not causally connected to the work-related injury, the employee was, nevertheless, entitled to compensation for the disability directly attributable to the accident. 306 Ill. 582, 587.

Although the medical testimony here clearly indicates that the noncausally related cystic condition has contributed to claimant’s disability, there is also evidence to indicate that, as a result of the accident, claimant suffered for a period of time from an aggravation of his preexisting spondylolisthesis. (Dr. Schultz testified that as of October 1974 claimant was suffering from an underlying spondylolisthesis which could have caused, or at least contributed to, the pain in claimant’s back, and Dr. Wright indicated that claimant’s initial disability was due to the injury received at work.) Based on the record before us, however, we are unable to determine what portion of claimant’s disability was directly attributable to the aggravated spondylolisthesis. Accordingly, the cause must be remanded to the Industrial Commission for a further hearing to determine the portion of claimant’s disability attributable to the work-related injury.

The medical bills incurred by the claimant for treatment of the cyst are not recoverable, and the circuit court’s remandment of the cause to the Industrial Commission for a redetermination of the amount to be awarded for medical, surgical, and hospital services is affirmed. The circuit court judgment is otherwise vacated, and the cause is remanded to the Industrial Commission to conduct further proceedings in accordance with this opinion.

Affirmed in part and vacated in part and remanded.

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


text:
    (No. 49822.
    JERRY RITCHEY, Appellee, v. GEORGE MAKSIN, Appellant.

      Opinion filed April 3, 1978.

    Rehearing denied May 26, 1978.

      William J. Scott, Attorney General, of Springfield (Stephen R. Swofford, Assistant Attorney General, of Chicago), for appellant.
    Dennis J. Hogan, of Hogan & Jochums, of Murphysboro, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Jerry Ritchey, d/b/a Olympic Feed Products, brought this action for damages against George Maksin, an employee of the Illinois Department of Agriculture (Department). The alleged damages arose from an earlier action in which defendant filed a criminal complaint against the plaintiff for violations of certain provisions of the Illinois Commercial Feed Act of 1961 (Act) (Ill. Rev. Stat. 1975, ch. 56½, par. 66.1 et seq.).

As part of the Department’s investigation of alleged adulteration and misbranding of feed products sold by plaintiff, the defendant, who held the title of “Products and Standards Inspector II,” collected samples of plaintiff’s feed and submitted those samples to a Department chemist for analysis. As a result of the chemist’s findings, a hearing was conducted at which the plaintiff, defendant, and the chemist testified. Based upon the evidence, the hearing officer, a Department bureau chief, entered an order which recommended that plaintiff be charged with violations of the Act. The order referred the matter to the appropriate State’s Attorney for prosecution.

Pursuant to the above order, the defendant initiated charges against the plaintiff with the State’s Attorney of Jackson County. He signed two verified complaints, and later filed an amended complaint, charging the plaintiff with violations of sections 7(c) and 8(c) of the Act (Ill. Rev. Stat. 1975, ch. 56½, pars. 66.7(c), 66.8(c)). The complaints alleged that the feed distributed by plaintiff was improperly labeled and the nutrient content inferior to that indicated on its label. For reasons not indicated by the record, the prosecution was apparently dismissed.

Thereafter, the plaintiff filed a two-count complaint seeking damages for loss of business and injury to his business reputation as a result of adverse publicity generated by the filing of the criminal complaints. Count I of the complaint alleged that the defendant “negligently [and] publicly accused Plaintiff of being an adulterater [sz'c] and misbrander of feed products,” and that the “Defendant knew or *** should have known” that the chemical analysis conducted on plaintiff’s feed samples was false and misleading as to the feed’s true protein content. The complaint further alleged that in initiating the criminal charges pursuant to the Department’s order, the “Defendant negligently failed to stay within the scope of his ministerial functionary duties as an inspector of feeds” and that the “Defendant in the exercise of ordinary care knew or should have known” that the charges were “without probable cause.” The complaint also averred that as a direct and proximate result of the above negligent acts, the plaintiff was required to expend substantial money and time defending against the charges, and that he suffered a loss of business as a result of adverse public reaction to newspaper accounts of the charges. Count II of the complaint was identical to count I, except that it charged the defendant with having acted willfully and wantonly. Count I asked for compensatory damages; count II requested an additional amount in punitive damages.

The defendant moved to dismiss the complaint on the grounds that (1) he was immune from liability in that he was acting within his official capacity when he filed the complaint, (2) the suit was properly one against the State and should have been brought in the Court of Claims, and (3) the complaint failed to allege facts upon which relief could be granted. Following argument and the submission of memoranda, the trial court ruled that defendant was immune from liability and that the action should have been brought against the State in the Court of Claims. The complaint was dismissed.

The appellate court, in a two-to-one decision, reversed the trial court and held that the action had been properly brought in the circuit court. (49 Ill. App. 3d 974.) The appellate court did not consider whether defendant was immune from liability, and it declined to consider whether the complaint stated a cause of action. We granted defendant leave to appeal.

The defendant here contends that the appellate court erred in reversing the trial court’s dismissal of the complaint and relies upon the same grounds as those which he presented to the trial court. Because we find that the complaint does not state a cause of action, we do not reach the defendant’s other contentions.

Although pleadings are to be liberally construed and formal or technical allegations are not necessary, a complaint must, nevertheless, contain facts necessary to state a cause of action. (Ill. Rev. Stat. 1975, ch. 110, par. 31; Fanning v. LeMay (1967), 38 Ill. 2d 209, 211.) A complaint fails to state a cause of action when it omits facts, the existence of which are necessary for plaintiff to recover. (Fanning v. LeMay (1967), 38 Ill. 2d 209, 212.) Herein, the complaint’s mere allegations that the defendant acted negligently or willfully and wantonly, and outside the scope of his authority, do not state a legally recognized cause of action for injury resulting from the wrongful filing of a criminal complaint. When construed in a light most favorable to the plaintiff, the complaint appears to seek relief under one or more of the following theories: malicious prosecution, defamation, or disparagement.

To state a cause of action for what is commonly known as malicious prosecution, the complaint must contain facts which show (1) the commencement or continuance of an original criminal or civil judicial proceeding by the defendant; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff. Freides v. Sani-Mode Manufacturing Co. (1965), 33 Ill. 2d 291, 295; Alswang v. Claybon (1976), 40 Ill. App. 3d 147, 150.

While the complaint alleges that the defendant knew or should have known the charges were without “probable cause basis,’’ it sets forth no facts to support this conclusion. Neither are there facts to indicate that defendant acted maliciously, i.e., that he purposely filed the criminal complaint for some reason other than to bring plaintiff to justice. (McElroy v. Catholic Press Co. (1912), 254 Ill. 290, 293.) On the contrary, the complaint specifically alleges that the defendant acted pursuant to the Department’s order which recommended that, based on the evidence submitted at the hearing, criminal proceedings should be instituted against the plaintiff for violations of the Act. Accordingly, the complaint does not state a cause of action for malicious prosecution.

The complaint also alleges that defendant publicly accused the plaintiff of being an adulterator and misbrander of feed products, but does not set forth when or where any such accusations were publicly made. The only act of “publication” alleged against the defendant is his actual filing of the criminal complaints. The allegations leveled against plaintiff by defendant were made in the context of the criminal proceeding. Such statements, if relevant and pertinent to the judicial proceeding, as these obviously were, are privileged and cannot serve as the basis for an action of defamation or disparagement. Ash v. Zwietusch (1896), 159 Ill. 455; Soter v. Christoforacos (1964), 53 Ill. App. 2d 133, 138-41; Restatement of Torts secs. 587, 638 (1938).

Based on the foregoing, we find that the complaint failed to state a cause of action.

The judgment of the appellate court is therefore reversed, and the judgment of the trial court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50112.
    HIRAM WALKER & SONS, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al.-(Geraldine Taylor, Appellant.)

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    Morton S. Goldfine and Lawrence L. Hermalyn, of Peoria, for appellant.
    Goldsworthy, Fifield & Gorman, of Peoria (Jordan A. Fifield and Joseph E. Winne, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The sole issue in this proceeding under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) is the nature and extent of the injury suffered by claimant Geraldine Taylor on April 21, 1975, while working at the Peoria plant of respondent, Hiram Walker & Sons, Inc. The arbitrator awarded claimant $80.90 per week for 35U weeks pursuant to section 8(e) (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)) for a 15% loss of use of the left arm. The Commission affirmed. The circuit court of Peoria County, however, held that the record “fails to substantiate the finding of any permanent disability,” and set aside the award. The appeal is before us pursuant to our Rule 302(a). 58 Ill. 2d R. 302(a).

Claimant’s injury occurred on her first day back to work after having been laid off for a substantial period of time during which she had been involved in an auto accident and suffered injuries including a contusion of the left shoulder. Her job duties included lifting crates of bottles onto a conveyor belt. After lunch, she complained of pains in her left hand and arm and noticed that it was swollen and discolored. The foreman referred her to the nurse, who gave her a whirlpool treatment and a steel guard which protected her left forearm, wrist and hand. Claimant returned for two days to the same job, wearing the steel guard; she subsequently was given a more flexible wrist support, which she continued to wear to work at the timé of the hearing before the arbitrator.

The record contains reports from the examining physicians. Dr. Horacio R. Rivero, who examined claimant on May 24, 1976, found tenderness in the left wrist and forearm and a limitation of movement. He diagnosed the condition as resulting from an injury to the left hand, wrist and forearm including pain, stiffness and weakness and indicated further treatment would be needed.

Claimant was also examined, on at least two occasions, the last of which was on December 18, 1975, by an orthopedic surgeon, Dr. David E. Conner. His report stated his impression that claimant had a “Resolving tenosynovitis, left wrist, dorsum.” He recommended she continue the wrist support until the pain resolved.

The determination of disputed facts and the drawing of reasonable inferences from the evidence in workmen’s compensation cases are the province of the Industrial Commission, and its findings regarding the nature and extent of a disability will not be set aside unless they are contrary to the manifest weight of the evidence. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 246; Parris v. Industrial Com. (1977), 69 Ill. 2d 31, 37-38; Ferrin Cooperative Equity Exchange v. Industrial Com. (1976), 64 Ill. 2d 445, 448-49.) In reviewing those findings and conclusions the function of a court is limited to determining whether they are contrary to the manifest weight of the evidence. Only in the event they are may the courts intervene. (A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 245-46.) Here, the record contains not only claimant’s own testimony regarding continuing pain and weakness in the left arm, but medical opinion predicated on an examination performed more than a year after the injury which found continuing tenderness, limitation of motion and need for futher treatment. Considering these circumstances and the absence of proof relating the present ill-being to the 1974 auto accident, we do not believe the award may be said to be contrary to the manifest weight of the evidence.

The judgment of the circuit court of Peoria County is accordingly reversed and the Commission’s award reinstated.

Judgment reversed; award reinstated.

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


text:
    (No. 49925.

      In re TONI CAROLE BAKER, a Minor.-(The People of the State of Illinois, Appellee, v. Toni Carole Baker, a Minor, Appellant.)

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    Richard J. Wilson, Deputy Defender, of the Office of the State Appellate Defender, of Springfield (Edward R. Green, Assistant Defender, of counsel), for appellant.

      William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Timothy B. Newitt, of Chicago, Assistant Attorneys General, of counsel), for the People.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Because she repeatedly ran away from home, the 14-year-old respondent in this juvenile proceeding was, on September 8, 1976, adjudged by the circuit court to be a “minor otherwise in need of supervision” as defined in section 2—3 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702—3). Her care and custody were transferred to the Department of Children and Family Services, which placed her in the Cunningham Children’s Home in Champaign County. After she had been absent from the home without leave, the court entered a further order specifying “that any further unauthorized absence from Cunningham Children’s Home by respondent minor will result in finding that she is in contempt of this Court.” Respondent again left the home, and on June 9, 1977, a petition for a rule to show cause why she should not be held in contempt was filed. She moved to dismiss on the ground that the exclusive remedy for violation of a court order was a further proceeding under section 2—3(d). The trial judge held that sections 2—2(b) and 2—3(d) of the Act were unconstitutional legislative attempts to abridge the court’s contempt powers, held respondent in contempt, adjudged her for that reason delinquent, and placed her on probation. The case comes directly here on appeal pursuant to our Rule 302(a). 58 Ill. 2d 302(a).

Respondent relies on sections 2—2 and 2—3, which provide:

“Sec. 2—2. Delinquent Minor. Those who are delinquent include any minor who prior to his 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance; and (b) prior to January 1, 1974, any minor who has violated a lawful court order made under this Act.
Sec. 2—3. Minor Otherwise in Need of Suprevision. Those otherwise in need of supervision include *** (d) on or after January 1, 1974, any minor who violates a lawful court order made under this Act.” Ill. Rev. Stat. 1975, ch. 37, pars. 702-2, 702-3.

The State contends the Juvenile Court Act and the contempt power are not mutually exclusive and that the circuit court’s use of the contempt power was appropriate as an alternative to the remedy provided in the Act. Respondent now concedes that sections 2—2 and 2—3 of the Act provide a remedy in addition to, rather than the exclusion of, the contempt power. She contends, however, that the contempt power was inappropriately used here and that the finding of delinquency cannot stand under the specific definition of a “delinquent” provided in section 2—2 of the Act.

The Juvenile Court Act originally provided that a minor who violated a court order was delinquent. (Ill. Rev. Stat. 1965, ch. 37, par. 702—2.) The Act was amended so that a minor violating a court order on or after January 1, 1974, was not a delinquent but a minor otherwise in need of supervision. (Ill. Rev. Stat. 1973, ch. 37, pars. 702—2(b), 702—3(d).) It is clear from the language of these sections and the council commentary that the intent of the legislature in so amending the statute was to permit a finding of delinquency only where a minor had actually violated or attempted to violate a “federal or state law or municipal ordinance” (Ill. Rev. Stat. 1975, ch. 37, par. 702—2; see Ill. Ann. Stat., ch. 37, par. 702—2, Council Commentary, at 59-60 (Smith-Hurd Supp. 1978)), and to eliminate the former possibility that a minor would be declared a delinquent solely because a court order had been disobeyed.

It is equally clear that the amendments did nothing to deprive the circuit courts of the use of their contempt powers to enforce supervision orders. The council commentary to the amended section 2 — 2 states:

“The juvenile court under the Juvenile Court Act has the power to enforce its orders by detaining a juvenile in an appropriate local facility until arrangements can be made or assurances given that its orders will be complied with. Ill. Rev. Stat., ch. 37, sec. 703—1(2).
There is also inherent power in the juvenile court to deal with persons in contempt. See Annotation, 8 ALR [1548], 54 ALR 321, 73 ALR 1185, [77] ALR 2d 1004. Such persons may be confined in a local detention facility to enforce compliance with court orders.” (Ill. Ann. Stat., ch. 37, par. 702—2, Council Commentary, at 60 (Smith-Hurd Supp. 1978).)

A court is vested with inherent power to enforce its orders and preserve its dignity by the use of contempt proceedings. (People v. Javaras (1972), 51 Ill. 2d 296, 299; People v. Loughran (1954), 2 Ill. 2d 258, 262.) Because such power inheres in the judicial branch of government, the legislature may not restrict its use. (People ex rel. Rusch v. White (1929), 334 Ill. 465, 484; People ex rel. Martin v. Panchire (1924), 311 Ill. 622, 625.) That limitation upon legislative action does not, however, preclude the legislature from providing an alternative statutory solution, and that, in our opinion, is the effect of sections 2—2(b) and 2—3(d). Therefore, the circuit court erred in finding these sections of the Juvenile Court Act unconstitutional.

While not now disputing the existence of the contempt power, respondent urges its exercise in the circumstances of this case was unnecessary and erroneous. Her thesis is that since the legislature decided to provide a particular remedy for the violation of a court order, its decision should be respected. Respondent notes that the court’s solution to the runaway problem — placing her on probation with the Department — could have been as well accomplished by proceeding under section 5—2(1)(b)(1) (Ill. Rev. Stat. 1975, ch. 37, par. 705-2(1)(b)(1)).The flaw in this argument is the fact that respondent agrees that the alternative procedures are available to the court. Since the contempt power exists and there is a factual basis for that holding, the order cannot be said to be erroneous simply because an alternative route to the same objective was available. The trial court made a specific finding that the alternative remedy was “without sufficient deterrent effect,” and respondent has presented nothing which convinces us of any impropriety in that finding.

Finally, respondent contends that the circuit court had no authority to adjudge her delinquent under the Juvenile Court Act solely because she had been held in contempt for violating the court’s order. As previously noted, the definition of “delinquent” found in section 2—2 of the Act includes only those who violate statutory law. We have been cited to no authority, and we know of none, which indicates any constitutional impermissibility in that legislative limitation. Juvenile cont'emnors, civil or criminal, may be punished for their contumacy, but the court clearly cannot use a contempt finding as a basis for an adjudication of delinquency under the valid and unambiguous terms of the Juvenile Court Act.

Accordingly, the judgment of the circuit court of Champaign County is affirmed insofar as it relates to contempt; the adjudication of delinquency is reversed.

Affirmed in part and reversed in part.

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


text:
    (No. 49670.

      In re SHERWIN I. LEVINSON, Attorney, Respondent.

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Sherwin I. Levinson, of Chicago, pro se.

   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This disciplinary proceeding comes before us on exceptions to the report and recommendation of the Review Board of the Attorney Registration and Disciplinary Commission which approved the Hearing Board finding that Sherwin I. Levinson (respondent) should be disbarred. That recommendation resulted from a complaint filed by the Administrator against respondent pursuant to the provisions of our disciplinary rules (58 Ill. 2d R. 751 et seq.; 65 Ill. 2d R. 753 et seq.). Count I of that complaint related to respondent’s misconduct in connection with the handling of an adoption in which Mr. and Mrs. William Soto retained respondent to represent them in the adoption of Mr. Soto’s son. Count II related to respondent’s failure to register and pay to the Commission the annual attorney’s registration fee required by Rule 756.

In November 1973 the Sotos retained respondent pursuant to an agreement that he would be paid $275 for handling the legal proceedings concerning the adoption. One hundred dollars of the fee was paid February 11, 1974, $50 on March 15, and $50 on April 1. The $75 balance was payable 3 days before the court hearing. A petition for adoption was filed by respondent on March 8; he apparently arranged for publication of notice and did arrange an appointment for the Sotos to be interviewed on June 20 by Rose Cantwell, a caseworker for the Cook County Department of Supportive Services. That appointment was kept by the Sotos, but no further action was ever taken by respondent to complete the adoption proceedings.

Mrs. Soto testified that when she heard nothing further from respondent, she started calling his office every other day, leaving messages with his answering service. She continued this for about two weeks, but her calls were never returned. She complained to the answering service and was informed that her messages were given to respondent, which was all that could be done. Sometimes Mrs. Soto called twice per day. In early August she received a letter from Mrs. Cantwell asking her to call. She did so and was told that Mrs. Cantwell had been trying, unsuccessfully, to reach respondent, who did not return her calls or acknowledge her messages. Apparently Mrs. Soto was told by Mrs. Cantwell during this call that a $25 fee and an interim court order were necessary before a visiting caseworker could complete her investigation and report to the court. Mrs. Soto continued her efforts, and finally respondent himself answered the telephone on January 13, 1975. Mr. Soto’s father and brother accompanied the Sotos to respondent’s office that same day. Respondent at first denied ever receiving any prior messages and then told them Mrs. Cantwell was “holding up everything.” Mrs. Soto testified that, when asked about the $25 fee and interim order, respondent maintained he had sent the fee and secured the order. Actually, he had done neither. Mrs. Soto stated that respondent promised to call them the following Monday. He did not. A February 24 letter to them said respondent had hurt his leg, would be out of town, but would “set this matter up and advise you” at “the end of the week or on Monday.” The Sotos heard nothing until a letter dated March 4 told them respondent had requested instructions from Mrs. Cantwell and “will complete and advise you. I would imagine in the next few days.” Hearing nothing within the following week, they again commenced calling respondent, leaving telephone numbers and messages. The calls were not returned. Mrs. Soto complained to the Commission following her April 5 call to respondent’s office in which, she testified, respondent answered the telephone, telling her, however, that he was respondent’s associate and that respondent would be in at 1 p.m. She called then and was told respondent was not in. Thereafter she left a message with the answering service indicating the Sotos no longer wanted respondent as their lawyer and requesting the return of their papers and money. Several days later they received their papers but not the money. The adoption proceeding was subsequently completed in 1976 by staff members of a legal assistance agency.

Rose Cantwell testified that she repeatedly and unsuccessfully attempted to communicate with respondent by telephone and mail following the initial interview with the Sotos; that she had no authority to refer the matter to a visiting caseworker until she received a “turnover order” from the court and the fee had been paid or waived (which it eventually was); that the court was informed of respondent’s lack of cooperation; that respondent did call once in September 1974 and wrote a letter and called in March 1975, but that he did not answer when the calls were returned nor did he secure the order requested in the many messages left with his answering service both before and after the March letter.

We agree that respondent’s conduct violated Canons 1, 6 and 7 (Disciplinary Rule 1—102(A)(4), Disciplinary Rule 6—101(A)(3), and Disciplinary Rule 7—101(A)(2)) of the Illinois Code of Professional Responsibility approved by the Board of Governors of the Illinois State Bar Association, as revised December 1977, and our Rule 756. Respondent not only failed to perform his contract with the Sotos even though he had been paid all fees then owing him, but he also failed to respond to their attempts to communicate with him. When they did succeed, in J anuary 1975, in conferring with him, he misrepresented to them the facts regarding the cause for the delay in completing the adoption, and thereafter failed to make good his assurances of forthcoming action.

Perhaps even more astonishing, under normal circumstances, would be the lack of concern manifested by respondent with regard to these proceedings. Despite personal service upon him of a copy of the complaint and notice of hearing, respondent filed no answer, and neither he nor anyone on his behalf appeared before the Hearing Board or the Review Board. Only after our May 25 order approving the report of the Review Board and disbarring respondent did he appear in this court. On June 13 respondent moved to reconsider that order and for leave to file exceptions to the report of the Review Board. That motion was allowed and an order entered by us requiring exceptions to be filed by July 1 and respondent’s brief by July 26. The exceptions were filed, but the brief was not. On November 4 the Administrator again moved to confirm the Review Board report and reissue the disbarment mandate. Respondent objected, and on November 16 this court ordered respondent to file his brief within 30 days. That order provided the disbarment order should issue if the brief was not filed within the specified time. A brief was filed.

The several documents filed by respondent allude to the serious illness and death of his son as factors mitigating what we would normally regard as most extraordinary conduct. While we are not insensitive to respondent’s loss and appreciate the grievous and traumatic nature of the period embracing the illness and death of his son, the difficulty is that respondent has presented no facts or evidence whatsoever to any of the disciplinary bodies hearing this case. The documents filed in this court contain rather vague references to agents of the Commission being informed by him of the son’s illness and advising respondent “that under said circumstances all would be considered and the Commission would act in such a manner as to allow to respond and/or act when this personal problem was concluded.” His objections assert “C. That the respondent was in constant hospital attendance during this period and in fact taking instruction on how to operate medical apparatus in order to help with son’s care and sustain his life.” Respondent’s motion to reconsider our original disbarment order also alleged:

“2. That the son of the said Sherwin I. Levinson did pass away on April 18, 1977 after an illness of quite a period of time and a hospitalization of over six months, during which time Sherwin I. Levinson was in almost constant attendance and did so advise the commission’s representative.
***
4. That I did and do have a meritorious response to this matter, but as I so advised the commission, my son’s health was paramount and was led to believe they understood.”

The Administrator’s reply to respondent’s motion to reconsider our earlier disbarment order states the facts as to hospitalization differently. Insofar as here relevant, they are as follows:

“1. The complaint and notice of hearing in this case was served on the respondent at his office on May 13, 1976. The respondent’s son was hospitalized at that time and was discharged on May 29, 1976.
2. The hearing in this case was held July 8, 1976, and the respondent did not appear. The Hearing Board attempted to call the respondent but he could not be reached and the hearing proceeded.
3. On August 2, 1976, the respondent wrote to the Administrator’s office in response to another complaint against him (76—CI—788),but made no inquiry relating to the above-entitled case.
4. The respondent’s son was again hospitalized from November 1, 1976 to December 9, 1976.
* * *
8. The respondent’s son died April 18, 1977.”

If respondent’s son’s condition was one requiring constant attention, it might well be at least a partial explanation for what would otherwise appear to be an unusual lack of concern regarding the disciplinary proceedings. To assume this to have been true, however, would be little better than sheer speculation on the record before us. Similarly, there is in that record no suggestion that the son’s illness existed during the 1973-75 period involving the Sotos. Nor does it seem to us that the circumstances here, distressing as they undoubtedly were, justify respondent’s inattention to these proceedings in recent months, nor his prolonged failure, which so far as we are informed persists to this day, to pay his annual registration fee. While the possibility cannot be denied that respondent may have undergone severe or disabling emotional disturbance following the death of his son, the responsibility rests with respondent to establish that fact or any others mitigating what appear to us as serious misconduct with the Sotos and an unusual absence of concern for the later proceedings before this court.

As we have frequently indicated, the principal purposes of disciplinary proceedings are protecting the public, safeguarding the administration of justice, and maintaining the integrity of the profession. (In re Leonard (1976), 64 Ill. 2d 398, 406.) In our judgment, respondent’s continued practice of law is not compatible with the implementation of those standards. The amount of money paid respondent by the Sotos was not insubstantial, and they were subsequently compelled to seek assistance from a United Charities of Chicago legal clinic in completing the adoption. Failure to pay an annual registration fee resulting solely from mistake or oversight would not arouse concern. But it is what seems to be an irresponsible course of conduct which troubles us and is persuasive of the necessity for substantial discipline in order that the public may be protected from the effects of that irresponsibility. While we are not insensitive to the family problems faced by respondent in 1976, we believe that future clients should not be exposed to the possibility of treatment such as the Sotos received until there appears greater reason than now exists to expect respondent’s adherence to normal professional standards.

Respondent is accordingly suspended from the practice of law for a period of 6 months and until the further order of the court.

Respondent suspended.

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


text:
    (No. 49339.
    GLEN ELLYN SAVINGS AND LOAN ASSOCIATION et al., Appellees, v. A. T. TSOUMAS, Director, Illinois Department of Financial Institutions, Appellant.

      Opinion filed May 26, 1978.

      MORAN and KLUCZYNSKI, JJ., took no part.
    William J. Scott, Attorney General, of Springfield (George W. Lindberg, Deputy Attorney General, and Imelda R. Terrazino, Assistant Attorney General, both of Chicago, of counsel), for appellant.
    Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, of Springfield (James M. Winning, of counsel), for appellee Glen Ellyn Savings & Loan Association.
    Harold B. Shore and Matthew G. Ash, of Washington, D.C. (Anne P. Jones, of counsel), for amicus curiae Federal Home Loan Bank Board.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The primary question in this case is whether, under the supremacy clause of the United States Constitution (U.S. Const., art. VI), the Home Mortgage Disclosure Act of 1975 (12 U.S.C. sec. 2801 et seq. (1976)) (“Federal Act”) has preempted the application of the Financial Institutions Disclosure Act (Ill. Rev. Stat. 1975, ch. 95, par. 201 et seq.) (“Illinois Act”) to certain federally chartered banks and savings and loan associations operating in Illinois. The circuit court concluded that the Federal Act does preempt the application of the Illinois Act to certain federally chartered banks and savings and loan associations. Because we agree with that conclusion, we need reach no other issues, for the Illinois Act contains the following self-destruct clause:

“If any provision of this Act or the application thereof to any person or circumstance is held invalid, such determination of invalidity shall apply to all provisions of this Act. No provision is severable.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 95, par. 208.

It is undisputed that both acts are directed toward the same general object: disclosure of the geographical distribution of the real estate securing the extension of credit by various financial institutions, with a view toward elucidating whether such institutions have arbitrarily refused to extend credit secured by real estate located in certain urban areas (“redlining”). Toward that end, the Illinois Act requires every bank, insurance company, mortgage banking company, and savings and loan association which operates or has a place of business in Illinois to file with the Director of the Illinois Department of Financial Institutions and to make publicly available the following information about its lending activity:

“*** a statement showing for each neighborhood [zip code] which lies wholly or partially within a county having a population of more than 100,000 persons, and a statement showing for each census tract which lies wholly or partially within a county having a population of more than 100,000 persons:
The number and aggregate dollar amount of written applications for, and the number granted and aggregate dollar amount of:
(1) Loans secured by residential real estate;
(2) mortgage loans insured under the federal National Housing Act, Title 12, United States Code, Chapter 13;
(3) mortgage loans guaranteed under the provisions of the federal Veterans’ Benefits Act, Title 38, United States Code, Chapter 37, Subchapter II;
(4) construction loans; and
(5) home improvement loans and loans made in accordance with Subchapter I, ‘Housing Renovation and Modernization’, of the National Housing Act, Title 12, United States Code, Chapter 13.” Ill. Rev. Stat. 1975, ch. 95, par. 203.

The Federal Act, passed only a few months after and with knowledge of the Illinois Act (see H.R. Rep. No. 94—561, 94th Cong., 1st Sess. 19, reprinted in [1975] U.S. Code Cong. & Ad. News 2303, 2320) requires all depository institutions (including, inter alia, banks, credit unions, and savings and loan associations) which had assets greater than $10 million as of their last full fiscal year, and which maintain a home or branch office within a standard metropolitan statistical area (SMSA) to file with the appropriate Federal official and make publicly available the following information:

“[T] he number and total dollar amount of mortgage loans which were (A) originated, or (B) purchased by that institution dining each fiscal year *** itemized *** by census tracts [where practicable] ***, otherwise by zip code, for borrowers, under mortgage loans secured by property located within that standard metropolitan statistical area *** [and] for all such mortgage loans which are secured by property located outside that standard metropolitan statistical area.” (12 U.S.C. 2803 (1976).)

Even a quick comparison of the two statutes reveals substantial differences in the coverage and mechanics of the two disclosure schemes. Those differences, however, are immaterial in light of the more specific treatment given the question of preemption in section 306 of the Federal Act (12 U.S.C. sec. 2805 (1976)).

“Sec. 2805. Relation to state laws
(a) This chapter does not annul, alter, or affect, or exempt any State chartered depository institution subject to the provisions of this chapter from complying with the laws of any State or subdivision thereof with respect to public disclosure and recordkeeping by depositor institutions, except to the extent that those laws are inconsistent with any provision of this chapter, and then only to the extent of the inconsistency. The Board is authorized to determine whether such inconsistencies exist. The Board may not determine that any such law is inconsistent with any provision of this chapter if the Board determines that such law requires the maintenance of records with greater geographic or other detail than is required under this chapter, or that such law otherwise provides greater disclosure than is required under this chapter.
(b) The Board may by regulation exempt from the requirements of this chapter any State chartered depository institution within any State or subdivision thereof if it determines that, under the law of such State or subdivision, that institution is subject to requirements substantially similar to those imposed under this chapter, and that such law contains adequate provisions for enforcement. Notwithstanding any other provision of this subsection, compliance with the requirements imposed under this subsection shall be enforced under—
(1) Section 1818 of this title in the case "of national banks, by the Comptroller of the Currency; and
(2) Section 1464(d) of this title in the case of any institution subject to that provision, by the Federal Home Loan Bank Board.”

The language of section 306 plainly states that the Federal Act is not intended to preempt the application of equally stringent, antiredlining disclosure acts to State-chartered institutions. Under the doctrine of expressio urvius exclusio alterius est (People ex rel. Moss v. Pate (1964), 30 Ill. 2d 271), this language cannot be presumed to be surplusage (Hirschfield v. Barrett (1968), 40 Ill. 2d 224), and it thus demonstrates Congress’ understanding that in the absence of such language, the Federal Act would be preemptive of similar State legislation. “The purpose of Congress is the ultimate touchstone.” (Retail Clerks International Association v. Schermerhorn (1963), 375 U.S. 96, 103, 11 L. Ed. 2d 179, 184, 84 S. Ct. 219, 223; accord, Malone v. White Motor Corp. (1978), 435 U.S. 497, 504, 55 L. Ed. 2d 443, 450, 98 S. Ct. 1185, 1190.) Here, the plain language demonstrates not only Congress’ understanding that the Federal Act normally would be construed to preempt the Illinois Act, but also its intention that only the regulation of State-chartered institutions be exempted from such preemption. Of course, if construction of the plain language of section 306 of the statute led to a result which was clearly repugnant to the purpose of the statute read as a whole and in light of its history, we would find that the above-quoted statutory language was, after all, mere surplusage. (E.g., People v. Todd (1975), 59 Ill. 2d 534.) That is not the case here, however. Although the stated purpose of the Federal Act is “*** to provide the citizens and public officials of the United States with sufficient information to enable them to determine whether depository institutions are filling their obligations to serve the housing needs of the communities and neighborhoods in which they are located and to assist public officials in the determination of the distribution of public sector investments in a manner designed to improve the private investment environment” (12 U.S.C. sec. 2801(b) (1976)); and although subjecting federally chartered institutions to the additional requirements of the Illinois Act could only further the above-quoted purpose of the Federal Act, it is plain from the legislative history of the statute that Congress retreated somewhat from its stated purpose in order to protect the interests of certain Federal agencies. The Senate version of the Federal Act would not have preempted the application of State laws to federally chartered institutions. The House, however, apparently responding to suggestions from the amicus cuñae in this case, the Federal Home Loan Bank Board (FHLBB) (see 121 Cong. Rec. H10,517 (daily ed. Oct. 31, 1975) (remarks of Rep. Stevens)), insisted that federally chartered institutions not be subjected to State disclosure laws. The House apparently accepted the FHLBB’s reasoning that “subjecting Federally chartered institutions to State disclosure laws would threaten the dual banking system.” See H. Conf. Rep. No. 726, 94th Cong., 1st Sess. 10, reprinted in [1975] U.S. Code Cong. & Ad. News 2333, 2336 (“Conference Report”).

We need not agree with that reasoning to be bound by it, for the conferees on the part of the Senate reluctantly agreed to the House version, and it has become law. (See Conference Report 2336.) Accordingly, we hold that, under the supremacy clause of article VI, United States Constitution, the Federal Act has preempted the application of. the State Act to federally chartered institutions subject to the Federal Act. Although the circuit court reached another issue, involving the validity of certain administrative actions taken by the Illinois Director of Financial Institutions allegedly pursuant to the State Act, we need not reach that issue, because of the aforementioned “self-destruct clause” of the State Act. Though neither party has specifically referred us to that clause (the State did however include it as part of the statutory appendix to its brief), the intent of that clause is both unmistakable and clearly applicable. Thus, we vacate as moot that portion of the circuit court’s judgment which deals with the validity of the Director’s actions, and, instead, amend the judgment to declare the Illinois statute invalid in toto.

For the foregoing reasons, the judgment of the circuit court is affirmed in part as modified and vacated in part as moot.

Affirmed in part as modified and vacated in part as moot.

MORAN and KLUCZYNSKI, JJ., took no part in the consideration or decision of this case.


author: MR. JUSTICE GOLDENHERSH MR. JUSTICE RYAN,

text:
    (No. 49976.
    RALPH GREEN, Appellant, v. CHARLES SMITH et al., Appellees.

      Opinion filed May 26, 1978.

    KLUCZYNSKI, J., took no part.
    RYAN, J., specially concurring.

      Harris and Lambert, of Marion, for appellant.
    Charles R. Jelliffe, of Jelliffe & Ferrell, of Harrisburg, for appellees.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Ralph Green, as “Administrator of the Estates of Jillena Ann Green and Unborn Infant, Deceased,” appealed from the judgment of the circuit court of Saline County entered upon allowance of the motion of defendants, Charles Smith, d/b/a Charles Smith Trucking Company, and Gary Ross, to dismiss count II of plaintiff’s complaint. Plaintiff, in count I of the complaint, sought to recover damages for the wrongful death of his wife, Jillena Ann Green, and in count II sought to recover damages for the pecuniary loss suffered “by reason of the death of the unborn infant.” The appellate court affirmed (51 Ill. App. 3d 856), and we allowed plaintiff’s petition for leave to appeal. This action arose out of a collision between an automobile driven by Jillena Ann Green and a truck owned and driven by defendants. The pleadings are adequately described in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues. In count II it was alleged that immediately prior to the collision Jillena Ann Green was 14 weeks pregnant with the unborn infant, that at the time the unborn infant was a “living, viable human being” and that as a proximate result of the collision “the unborn infant died the same date.”

The basis upon which the circuit court allowed defendants’ motion to dismiss, and upon which the appellate court affirmed, was that at 14 weeks the fetus was not viable and that there was no cause of action under the Wrongful Death Act for its “death.”

Plaintiff contends that under the decision of this court in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, “viability is no longer a required criterion in a wrongful death action for the death of an unborn child being carried by her mother.” Alternatively, plaintiff contends that should this court hold “that viability is still a criterion in a wrongful death action,” the complaint nevertheless states a cause of action for the reason that whether the fetus was viable is a question of fact. Defendants contend that a 14-week fetus is not viable and is therefore not a person for whose death damages may be recovered under the provisions of the Wrongful Death Act.

The Wrongful Death Act in pertinent part provided:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages ***.” Ill. Rev. Stat. 1975, ch. 70, par. 1.

In Amann v. Faidy (1953), 415 Ill. 422, it was held that under the Wrongful Death Act a complaint which alleged that as the result of defendant’s negligence a child en ventre sa mere suffered injuries which caused his death shortly after birth stated a cause of action. In Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, the court held that under the Wrongful Death Act there was a cause of action for the death of a child stillborn after its mother was injured. In both cases it was held requisite to the cause of action that, at the time the injuries were sustained, the child was viable. Although in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 353, the court rejected viability “as a criterion to a common law action for prenatal injuries,” the court did not in that case decide the question presented here. In our opinion there is a clear distinction between a common law cause of action on behalf of a live-born infant for injuries suffered prior to its having become viable, and a statutory cause of action for the destruction of a fetus not yet viable. The extent of the loss incurred by a living child burdened with mental or physical defects resulting from a prenatal occurrence is not affected by whether the injuries were suffered prior to or after he became viable. On the other hand, the Wrongful Death Act provides for recovery for the “death of a person,” and we find no basis upon which to hold that one can cause the death of a fetus not yet viable. We hold, therefore, that no cause of action exists for injuries and death of the unborn infant plaintiff unless at the time of the occurrence it had attained viability. Although there are several decisions which arguably support the position that viability is irrelevant, our holding is consistent with the majority view. See Annot., 84 A.L.R.3d 411 (1978).

We consider next the question whether the appellate court correctly held that “There is no reason to believe that plaintiff could prove that the fetus was viable at the time of injury” (51 Ill. App. 3d 856, 859) and that as a matter of law the fetus could not be viable.

The record shows that shortly after the appellate court opinion was filed, plaintiff pursuant to Rule 362 (58 Ill. 2d R. 362) moved for leave to amend his complaint to allege that at the time of the occurrence Jillena Ann Green, deceased, was 18, rather than 14, weeks pregnant. Plaintiff filed no petition for rehearing, and the motion to amend the complaint was denied. Section 46 of the Civil Practice Act in pertinent part provides:

“(1) At any time before final judgment amendments may be allowed on just and reasonable terms *** in any matter, either of form or substance, in any *** pleading, *** which may enable the plaintiff to sustain the claim for which it was intended to be brought ***.” (Ill. Rev. Stat. 1977, ch. 110, par. 46.)

The decision of the question presented requires that the complaint be treated as amended in accordance with plaintiff’s motion.

As Mr. Justice Ryan observed in his dissent in Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, 376: “Viability ***■ is uncertain, indefinite and depends upon several factors other than the length of pregnancy. *** ‘[I] t is a relative matter, depending on the health of mother and child and many other matters in addition to the stage of development. ’ ” In Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, Mr. Justice Moran, writing for the plurality, stated: “In addition to the length of pregnancy, viability depends on other factors which include the weight and race of the child and the available life-sustaining techniques.” (67 Ill. 2d 348, 352.) Relying principally on “Obstetrics” by Professor Nicholson J. Eastman, Professor of Obstetrics at Johns-Hopkins University, defendants argue that the smallest, youngest fetus ever to have survived was 20 weeks and weighed approximately 400 grams; that the fetus in this case at 14 weeks would probably weigh less than 120 grams and as a matter of law, was not viable. We note that the edition (10th) of “Obstetrics” upon which defendants rely was published in 1950, and we have not been favored with information concerning the opinions expressed in the four editions published since that time.

From our review of the authorities we are unable to say that as a matter of law the unborn infant was not viable at the time of the occurrence which allegedly caused its “death.” It does not appear that in the present state of medical science it can be held that beyond question the fetus here involved could not have survived separate from and independent of its mother. Under the circumstances we hold that the question whether the unborn infant was viable at the time of the occurrence was one of fact and the appellate and circuit courts erred in deciding the question as one of law.

For the reasons stated the judgments of the appellate and circuit courts are reversed and the cause is remanded to the circuit court of Saline County for further proceedings consistent with this opinion.

Reversed and remanded.

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

MR. JUSTICE RYAN,

specially concurring:

I agree with the majority decision insofar as it is mandated by this court’s previous holding in Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368. However, I must again object, as I did in my dissent in that case, to the use of the viability standard. I believe that it is incorrect to premise the existence of a cause of action for wrongful death on such an uncertain and indefinite status. I believe that the continued use of this test is inconsistent with this court’s decision in Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, and with prenatal injury cases previously decided by our appellate courts (Sana v. Brown (1962), 35 Ill. App. 2d 425; Daley v. Meier (1961), 33 Ill. App. 2d 218). Also, I find the use of the viability standard inconsistent with expressed legislative intent to protect the unborn from the point of conception.

As the law currently stands in Illinois, recovery for wrongful death of an unborn child requires a finding of viability at the time of injury. (Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368.) Chrisafogeorgis was, to a large degree, based upon the premise that an unborn child becomes a “person” only when it becomes viable:

“[W]e consider more realistically and reasonably that viability is the appropriate line of demarcation. It is the time at which a child is capable of being delivered and remaining alive separate from and independent of the mother. This can be said to be the critical stage of a ‘person’ within the meaning of the Wrongful Death Act’s language ‘Whenever the death of a person ***.’” 55 Ill. 2d 368, 374-75.

My major objection to the viability standard, as I indicated in my dissent in Chrisafogeorgis, is that the point at which a fetus becomes viable is highly uncertain, depending upon such factors as the health of the mother and child. As Mr. Justice Moran noted, writing for the plurality in Renslow, viability is also dependent upon the weight and race of the child and the techniques which are presently available to sustain the life of the fetus outside the womb. Indeed, the legislature, in defining viability, makes specific reference to such techniques. It defines viability as “that stage of fetal development when the life of the unborn child may be maintained outside the womb by natural or artificial life-supportive systems. ” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 81—22(2).) It is eminently clear that advances in medical technology will continue to move the point of viability closer and closer to conception. For this court to base its determination that an unborn child becomes a “person” only at the point of viability is to premise the right to maintain an action for wrongful death on an uncertain and continually changing standard.

Secondly, the requirement of viability for maintenance of a wrongful death action contrasts sharply with Illinois cases allowing recovery for injuries to nonviable fetuses which are later born alive. As I noted in my dissent in Chrisafogeorgis, the First District Appellate Court has held that recovery for prenatal injuries does not require a showing of viability at the time of injury if the child is later born alive (Sana v. Brown (1962), 35 Ill. App. 2d 425; Daley v. Meier (1961), 33 Ill. App. 2d 218). These cases are apparently supported by this court’s decision in Renslow, even though that case dealt with negligent acts occurring before conception.

The majority in the present case attempts to distinguish recovery for personal injury from recovery for wrongful death by pointing out that in the former the child suffers the burden of mental or physical defects:

“In our opinion there is a clear distinction between a common law cause of action on behalf of a live-bom infant for injuries suffered prior to its having become viable, and a statutory cause of action for the destruction of a fetus not yet viable. The extent of the loss incurred by a living child burdened with mental or physical defects resulting from a prenatal occurrence is not affected by whether the injuries were suffered prior to or after he became viable.” 71 Ill. 2d at 504.

This distinction is faulted by the same logic which compelled the majority of this court in Chrisafogeorgis to extend a cause of action for wrongful death for the first time to an unborn fetus. The court stated:

“Another ground often expressed for permitting a right of action is that a holding would be logically indefensible which would allow a right of action where an injured child survives delivery for even the briefest time and would deny an action where the viable child does not survive delivery.” 55 Ill. 2d 368, 373.

The illogic of such a distinction is also illustrated by the case of Amann v. Faidy (1953), 415 Ill. 422. In that case, this court allowed recovery for the wrongful death of an infant who was injured while viable, bom alive and died shortly after from the injuries. Under the majority decision, however, recovery for wrongful death for a similar infant injured just prior to viability who is bom alive and dies shortly thereafter may not be had. In both cases, the negligent acts, the causation, and the injuries may have been exactly the same, yet recovery is banned in the later situation by the arbitrary viability requirement. In addition, as I pointed out earlier, viability is so uncertain that it will be difficult in many cases to determine if recovery shall or shall not be allowed.

Lastly, I wish to point out that the judicial determination that a nonviable fetus is not a person is directly contrary to legislative intent as clearly expressed in “An Act in relation to abortions ***” (Ill. Rev. Stat. 1977, ch. 38, par. 81—21 et seq.). This act, enacted subsequent to Chrisafogeorgis, was designed to conform Illinois law with the United States Supreme Court case of Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, permitting abortions under certain circumstances. While noting that the legislation was mandated by Roe, the General Assembly specifically stated that it considers a fetus to be a person from the point of conception:

“[T] he General Assembly of the State of Illinois do solemly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State.” (Ill. Rev. Stat. 1977, ch. 38, par. 81—21.)

Such clearly expressed legislative concern for the unborn must be considered by this court in construing the Wrongful Death Act, especially since this enactment was post -Chrisafogeorgis.

In light of the uncertainty, inconsistencies and conflict with legislative intent which result from use of the viability standard, I suggest that this court abandon the requirement of proving viability in wrongful death cases. I believe that this court must adopt a fairly definite standard for determining if the cause of action for wrongful death exists. While it is not this court’s function to assume the role of the legislature by decreeing when a fetus becomes a person, logic and conformity with prenatal injury cases and the clearly expressed legislative intent seem to require that we extend a cause of action for the wrongful death of an unborn child to the point of conception.