text:
      In re ESTATE OF NELLIE PEARL SPAITS, Deceased—(Flossie Kinsel et al., Petitioners-Appellants, v. Hazel Darlene LeFever, Respondent-Appellee (The First National Bank in Newton, Appellee)).
    Fifth District
    No. 82-405
    Opinion filed August 15, 1983.

      Baird, Latendresse, McCarthy & Rowden, of Decatur, for appellants.
    Lawrence Eaton, of Eaton, Eaton & Tomaw, of Newton, for appellee Hazel Darlene LeFever.
    Daniel E. Hartigan, of Leffler & Hartigan, of Newton, for appellee First National Bank in Newton, Illinois.
   JUSTICE JONES

delivered the opinion of the court:

The petitioners appeal from an order of the circuit court of Jasper County that denied their motion to file an amended petition to contest a will and granted the executor’s motion to dismiss the petition to contest the will. The only issue on appeal is whether the failure to make the executor of an estate a party to a will contest proceeding prior to the expiration of the statutory six-month period in which an action may be commenced to contest the admission of a will to probate, as provided by section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 8 — 1), precludes making the executor a party to the proceeding.

The facts of this case are not in dispute. Nellie Pearl Spaits died testate on September 11, 1981. The will named her husband, Harold Spaits, as executor and further provided that if he should predecease her, the First National Bank of Newton, Illinois (Bank), should be appointed as the alternate executor. Harold Spaits had died on November 14, 1980. On September 29, 1981, a petition for probate of decedent’s will and for letters testamentary was filed. On September 29, 1981, the court entered an order that admitted the will to probate and appointed the Bank as the executor.

On March 26, 1982, petitioners filed their petition to contest the will. The petition did not refer to the executor. On April 12, 1982, certificate of notice of service of the petition to contest decedent’s will was filed. The Bank was not named in the notice or the certificate of service of notice. On May 11, 1982, the Bank filed a limited and special appearance for the purpose of objecting to the jurisdiction of the court over the executor in the will contest proceeding. On the same date the Bank filed a motion to dismiss the petition to contest the will on the basis that the Bank was not made a party to the will contest as required by section 8 — 2(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110½, par. 8 — 2(a)).

On June 1, 1982, petitioners filed a motion for leave to file an amended petition to contest the will in which petitioners admitted that the original petition to contest the will did not identify the legal representative of the estate and further admitted that the legal representative was not mailed a notice of the petition to contest the will. The motion alleged, however, that a copy of the petition was personally served on counsel for the Bank on March 26, 1982. On June 3, 1982, the Bank filed an objection to petitioners’ motion. On June 8, 1982, a hearing was held on the motion. On June 22, 1982, the court entered an order granting the motion to dismiss the petition to contest the will and denying contestants’ motion for leave to file an amended petition to contest the.will that included the executor as a party-defendant. Petitioners appeal from these orders.

Section 8 — 1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 8 — 1(a)) provides, in pertinent part:

“Within 6 months after the admission to probate of a domestic will in accordance with the provisions of Section 6 — 4, or of a foreign will in accordance with the provisions of Article VII, any interested person may file a petition in the proceeding for the administration of the testator’s estate or, if no letters were issued, in the court in which the will was admitted to probate, to contest the validity of the will. The representative, if any, and all heirs and legatees of the testator must be made parties to the proceeding and the petition must state, if known, their names and post office addresses and whether any of them is a minor or disabled person.”

If the appellants are to prevail, it must be on the basis of the cases of Nupnau v. Hink (1965), 33 Ill. 2d 285, 211 N.E.2d 379, and In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289. Those cases hold that jurisdiction of the court in a will contest suit is invoked by the filing of the complaint within the statutory period, nine months in Nupnau and six months in Mears. “[WJhile it is necessary to make parties all persons having an interest therein,” the court said in Nupnau, “this is not a condition precedent to the attaching of jurisdiction.” (33 Ill. 2d 285, 288.) But in holding that omitted necessary parties could be added as party-defendants after the expiration of the statutory period to begin a suit to contest the will, the court stated:

“The requirement of section 91, relating to parties, is separate and distinct and does not purport to add to the steps which section 90 says must be taken within nine months.” 33 Ill. 2d 285, 288, 211 N.E.2d 379, 381.

The court in Nupnau relied on Stephens v. Collison (1911), 249 Ill. 225, 94 N.E. 664, and Fleshner v. Copeland (1958), 13 Ill. 2d 72, 147 N.E.2d 329. In Stephens the executor had not been named a party-defendant as such, but the person named as executor had been named a party-defendant in his individual capacity. In Fleshner the executor was named as a party-defendant in the body of the complaint but not in the caption or introductory paragraph.

Subsequent to the decision in the Nupnau case the supreme court decided Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 243 N.E.2d 236. The stated issue was whether the nine-month, now six-month, period of limitation under section 90 of the Probate Act, now section 8 — 1(a), for filing a petition to contest the admission of a will to probate operated as a jurisdictional limitation or only as a statute of limitation. The issue was presented when the contestants did not file a petition to contest within nine months as required by section 90 but, instead, filed their petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 72). The court noted that since Luther v. Luther (1887), 122 Ill. 558, 13 N.E. 166, it had been held in many cases that the time limitation of the statute (governing will contests) was not a statute of limitations but was a jurisdictional limitation. Accordingly, the time limitation was not tolled by fraudulent concealment of the cause of action. Petitioners conceded that that had been the law but argued that because of the adoption of the new Judicial Article of the Illinois Constitution, effective January 1, 1964, the rule of the Luther case had been changed. The petitioners reasoned that prior to the new Judicial Article the probate court had jurisdiction of all probate matters while the circuit court had original jurisdiction of all causes in law and equity. They concluded that because the probate court had been abolished as a separate judicial entity by the new Judicial Article and the circuit court now had unlimited original jurisdiction of all justiciable matters, the limitation period of section 90 was no longer a jurisdictional limitation but would now be a statute of limitation that would be tolled by fraud. The petitioners’ argument was rejected, the court stating:

“The theory of the Luther case, which rejected the contention that the time limitation was an ordinary statute of limitations and held it to be a jurisdictional limitation, was as follows: a will contest as provided by the statute was unknown to the common law, and therefore jurisdiction to contest the validity of a will is derived exclusively from the statute and such jurisdiction can only be exercised in the mode and under the limitations prescribed by the statute[.] *** Thus, the holding of Luther was not based on the fact that the probate court was a separate judicial entity with original jurisdiction in probate matters, and the abolition of that court as a separate entity and the grant of unlimited original jurisdiction of all justiciable matters to the circuit court have not ipso facto changed the consistent construction that has been given to section 90 and its predecessors.” Ruffing v. Glissendorf (1968), 41 Ill. 2d 412, 416-18, 243 N.E.2d 236, 238-39.

The Ruffing case establishes beyond doubt that the time limitation provided in the statute authorizing a will contest suit is jurisdictional. We can perceive no reason why the specifications as to parties made in the same statute could be regarded in any way other than as jurisdictional. This perception is engendered by two amendments to the statutes governing the commencement of will contests which have been enacted by the legislature subsequent to the Nupnau case, and they are significant to the issue in this case. The first amendment, effective January 1, 1976, changed sections 90 and 91 of the Probate Act to sections 8 — 1 and 8 — 2, respectively, of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, par. 1 — 1 et seq.). Section 8 — 2 was amended to provide that the personal representative and all heirs and legatees of the testator must be made a party to the proceeding. The antecedent statutes had provided only that the personal representative, the heirs and legatees shall be made parties. Thus, the legislature indicated imperatively that it is necessary to join all parties. The second amendment became effective January 1, 1980. It consolidated the antecedent sections of the statute governing will contests into one section, 8 — 1, consisting of five sub-sections, under the single heading, “Contest of Admission of Will to Probate.” The legislature thus addressed the concern in Nupnau that “[t]he requirement of section 91, relating to parties, is separate and distinct and does not purport to add to the steps which section 90 says must be taken within nine months.”

For reasons that must remain unknown, the Nupnau case does not discuss the application of section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 46(4)), now section 2 — 616 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 616) to its decision. Section 46(4) concerns amendments of pleadings in a cause of action against a person not originally named a defendant. One may speculate that since the omitted parties in Nupnau were heirs, and stood to gain with the petitioners in the event the will was held invalid, they did not wish to oppose joinder to the action, and the issue was not presented. However, if the omitted parties had been legatees under the will, and thus potential losers if the petitioners’ suit were successful, a section 46(4) defense would probably have been raised.

We respectfully disagree with our brethren of the Fourth District who, in In re Estate of Mears, concluded that section 46(4) was not applicable to a will contest proceeding because it is not an action “against” any person but is a quasi in rem proceeding to set aside a will. The Means opinion overlooks salient points. Section 8 — 1(e) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 8 — 1(e)), provides that it is the duty of the representative to defend a proceeding to contest the validity of a will. The representative and legatees, that is beneficiaries, of the will must be served with process, and return must be made thereon, as in other civil cases. (Ill. Rev. Stat. 1981, ch. 110½, par. 8 — 1(b).) In addition to the above, and to remove lingering doubt, section 1 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 1 — 6) expressly makes the Civil Practice Act applicable to a will contest proceeding “except as otherwise provided in this Act.” There is no exception stated or suggested in section 8 — 1 of the Act that would omit application of section 46(4).

In a sense, a will contest is an attack upon the decedent and his desire to dispose of his estate as he sees fit, and such proceedings ordinarily are highly antagonistic and hard-fought legal battles. Aside from the statutory duty to defend imposed upon the representative, the beneficiaries of the will should be deemed antagonists, persons against whom the proceeding is brought. They are necessary parties, real, not nominal, and they have the right to, and do, appear and defend. Our perception is that a will contest proceeding is brought "against” the representative and the beneficiaries named in the will under attack.

That no personal judgment is being sought against individual defendants does not erase the applicability of section 46(4). There are many cases in which section 46(4) would be applicable despite the fact that no personal judgment was being sought against parties-defendant.

Section 46(4) provides specifically, in pertinent part:

“A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 46(4).)

Following the above, the statute sets out five terms and conditions, (a) through (e), which need not be set forth in full. Conditions (a), (b) and (d) are fulfilled in this case, and condition (e) has probably been fulfilled. However, condition (c) has not been met. Condition (c) provides:

“[Sjervice of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power or management or control over real property constituting a trust of which the person is a beneficiary ***.” (Ill. Rev. Stat. 1981, ch. 110, par. 46(4)(c).)

Here, the executor of the will, the First National Bank of Newton, was not named a party-defendant within the six-month limitation period, either in the caption of the case or in the body of the petition. The petition did not refer to the executor in any way. No summons was served upon the executor. No individual who was made a party-defendant and served with summons had any connection with the executor bank. None of the persons named as a party-defendant and served with summons served as the agent or partner of the executor.

An executor is a person who is appointed by a testator to carry out the testator’s directions concerning the dispositions he makes under his will. (In re Estate of Silverman (1972), 6 Ill. App. 3d 225, 285 N.E.2d 548.) The purposes of an administration of an estate are: (1) the conservation of the personal assets of the estate, including the collection of all debts due the decedent, (2) the payment of all debts and taxes owed by the decedent and his estate and (3) the proper distribution of the residue among the heirs at law according to the terms of the will or the applicable statute of descent and distribution. (People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67.) Neither the heirs nor the beneficiaries under the will can exercise these duties imposed by law upon an executor. An executor is an officer of the court. As such officer he is not an agent of the heirs or beneficiaries. He does not derive his power from them and is not subject to their control. See In re Estate of Herm (Iowa 1979), 284 N.W.2d 191.

For the reasons given, this case differs in substantial particulars from Fleshner v. Copeland and Stephens v. Collison that were relied upon in the Nupnau case. Furthermore, the legislature has amended the applicable statute to provide that the representative of the testator must be made a party to the proceeding named in the petition in the same paragraph that requires a petition to contest a will to be filed within six months after admission of the will to probate. A statutory amendment creates a presumption that it was intended to change the former law. (Caterpillar Tractor v. Lenckos (1979), 77 Ill. App. 3d 90, 395 N.E.2d 1167, aff'd (1981), 84 Ill. 2d 102, 417 N.E.2d 1343; People v. Davis (1981), 95 Ill. App. 3d 1097, 420 N.E.2d 1035.) Assuming, for the sake of argument, that the executor had knowledge of the petition to contest the will, as petitioners contend, that knowledge does not extricate petitioners from the result of failing to comply with the statute by making the executor a party defendant within the six month limitations period. See Greenwood v. Blondell (1980), 85 Ill. App. 3d 186, 406 N.E.2d 204.

We recognize that the facts of this case are similar to those in In re Estate of Mears. They are similar in that in both cases the executor of the will was not made a party-defendant. They are different in that in Mears the petition to contest alleged that an executor had been nominated and letters had issued to him. In this case, no mention was made anywhere in the petition of the executor or the letters that had been issued to it. As we said earlier, the court in Mears found that section 46(4) of the Civil Practice Act was inapplicable to the will contest proceeding because the proceeding was not “against” a person not originally named a party. For the reasons set forth above, we disagree "with this conclusion and respectfully decline to follow Mears.

Affirmed.

HARRISON, RJ., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNDLE GOLDEN, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD GIRE, Defendant-Appellant.
    Fifth District
    Nos. 82 — 409, 82 — 461 cons.
    Opinion filed August 2, 1983.

      Stanley P. Stasiulis, of Effingham, for appellants.
    K. Rick Keller, State’s Attorney, of Effingham (Stephen E. Norris and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

The instant appeals, which we have consolidated for purposes of opinion, present the issue of whether an indigent defendant is entitled to representation by court-appointed counsel at an “implied consent” hearing held pursuant to section 11 — 501.1(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1(c)). The trial court held that there was no such right to appointed counsel in an implied consent hearing and denied the defendants’ requests that they be represented at their respective implied consent hearings by the public defender who was representing them on criminal charges of driving while under the influence of alcohol (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(a)). On appeal from the court’s orders in these hearings, the defendants contend that they should have been allowed court-appointed counsel in the implied consent hearings because of the close connection between these hearings and the underlying criminal prosecutions for driving while under the influence of alcohol. We affirm.

Both defendants, Lyndle Golden and Donald Gire, were arrested for driving while under the influence of alcohol, and each subsequently refused to submit to a breathalyzer test when requested to do so. The arresting officer in each case filed an affidavit with the circuit clerk pursuant to section 11 — 501.1(c), and the defendants were notified that their driving privileges would be suspended unless they requested a hearing thereon. Both defendants filed a timely request for such a hearing.

At the subsequent hearings the trial court in each case refused to allow the defendants to be represented by the public defender who had been appointed to represent each defendant on the criminal charge of driving while under the influence of alcohol. The court ruled that since an implied consent hearing under section 11 — 501.1(c) is a civil proceeding with no possibility of imprisonment, the defendants had no right to appointed counsel at such a hearing. The court reasoned further that the loss of a driver’s license resulting from an implied consent hearing did not constitute a loss of liberty so as to give rise to the need for appointed counsel.

Following testimony by the arresting officer in each case, the court made the requisite findings under section 11 — 501.1(c) and ordered the suspension of the defendants’ driver’s licenses. The defendants have appealed from the trial court’s decision in each case.

Under the Illinois “implied consent” statute here at issue, any person who drives upon the highways of the State is deemed to have consented to the performance of a chemical test to determine his blood alcohol content if he is arrested for driving while under the influence of alcohol or other drug. (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1(a).) While a person’s refusal to submit to such a test will result in the suspension of his driving privileges, he is entitled to a judicial hearing to determine whether he refused to submit to a breath test after being lawfully arrested for driving while under the influence of alcohol. The statute provides:

“Such hearing shall proceed in the court in the same manner as other civil proceedings [and] shall cover only the issues of whether the person was placed under arrest for [the] offense [of driving while under the influence of alcohol or other drug]; whether the arresting officer had reasonable grounds to believe that such person was driving *** while under the influence of alcohol, other drug, or combination thereof; and whether such person refused to submit and complete the test or tests upon the request-of the law enforcement officer.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.1(c).)

The court must then decide, based upon its findings on these issues, whether the person’s license should be suspended.

The issue of an indigent defendant’s right to appointed counsel in an implied consent hearing has not been ruled upon by the courts of this State. It is well established, however, that such a hearing is civil rather than criminal in nature. (People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381; People v. Frye (1983), 113 Ill. App. 3d 853, 447 N.E.2d 1066.) As such, an implied consent hearing is subject to the rules governing civil appeals (People v. Malloy) as well as the civil rules of procedure governing matters of evidence and burden of proof (People v. Finley (1974), 21 Ill. App. 3d 335, 315 N.E.2d 229). Since there is, as a general rule, no right to appointed counsel in a civil proceeding (see People ex rel. Ross v. Ragen (1945), 391 Ill. 419, 63 N.E.2d 874; see also Tedder v. Fairman (1982), 92 Ill. 2d 216, 441 N.E.2d 311), it follows that an indigent defendant in an implied consent hearing has no right to appointed counsel.

The defendants contend, however, that, despite the “civil” label applied to an implied consent hearing, such a hearing is actually a “critical stage” in the underlying criminal prosecution for driving while under the influence of alcohol. They assert, in essence, that the two proceedings are so closely linked that counsel is required at an implied consent hearing in order to preserve the defendant’s right to a fair trial at the criminal proceeding itself. See Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55; United States v. Wade (1967), 388 U.S. 218,18 L. Ed. 2d 1149, 87 S. Ct. 1926.

The defendants maintain that because of the similarity of issues and evidence in the two proceedings, the rights of a defendant in a subsequent criminal trial may be prejudiced by his own uncounseled statements and by the court’s findings at the related implied consent hearing. They note in particular that evidence of a person’s refusal to submit to a breath test is admissible in a criminal proceeding for driving while under the influence of alcohol (see Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501.2(c)), making the court’s finding of refusal following an implied consent hearing potentially prejudicial. The defendants further contend that since an implied consent hearing involves a determination that the arresting officer had probable cause to believe a person was driving while under the influence of alcohol, it is “functionally equivalent” to a preliminary hearing in the underlying criminal proceeding, where assistance of counsel is constitutionally required. See Coleman v. Alabama (1970), 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999.

While an implied consent hearing involves factual questions similar to those of the corresponding criminal proceeding, we find no merit in the defendants’ argument that it constitutes a “critical stage” of that proceeding so as to give rise to the need for appointed counsel. An implied consent hearing is not a part of the criminal action but is, rather, a separate and distinct proceeding. (People v. Cassidy (1978), 67 Ill. App. 3d 43, 384 N.E.2d 599; 1974 Ill. Att’y Gen. Op. No. S—796.) As such, it progresses independently of the related criminal prosecution for driving while under the influence of alcohol and, indeed, may be held subsequent to the disposition of the criminal charge. (See, e.g., People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878.) Moreover, a dismissal or reduction of the charge of driving while under the influence of alcohol does not preclude the suspension of the defendant’s driver’s license under section 11 — 501.1 or obviate the necessity for an implied consent hearing if the defendant has requested such a hearing. (1974 Ill. Att’y Gen. Op. No. S — 796; cf People v. Cassidy (dismissal of traffic charges on procedural ground not determinative of result in independent implied consent hearing).) An implied consent hearing, therefore, subsists independently of the related criminal prosecution and is thus unlike those “pretrial confrontations” where counsel is required to preserve the defendant’s right to a fair trial. Cf. Hamilton v. Alabama (1961), 368 U.S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157 (right to counsel at arraignment); United States v. Wade (right to counsel at post-indictment lineup).

Contrary to the defendants’ assertion, the issues involved in an implied consent hearing are not so similar to those in the criminal action that the hearing thereby becomes a part of the criminal process. In the criminal action for driving while under the influence of alcohol, the State must prove beyond a reasonable doubt that the defendant was actually under the influence of alcohol or other drug while operating a motor vehicle. (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 501(a); People v. Toler (1975), 32 Ill. App. 3d 793, 336 N.E.2d 270.) In an implied consent hearing, on the other hand, the inquiry is whether a person refused to submit to a breath test after being arrested for driving while under the influence of alcohol and whether the arresting officer had reasonable grounds to believe the person was driving while under the influence of alcohol so as to make the arrest lawful. The burden of proof on these issues is the preponderance of evidence standard applicable to civil proceedings. (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.) Because of these differences in issues and proof, the court’s ruling in an implied consent hearing is neither binding nor determinative of the outcome in a subsequently held criminal trial. Cf. People v. Bafia (standard of “reasonable grounds” does not require the officer to have in hand evidence sufficient to convict).

The fact that a person’s refusal to submit to a breath test is admissible in a criminal action does not render the court’s finding of refusal in an implied consent hearing prejudicial to the defendant’s rights in that action. Such evidence of refusal derives not from the implied consent hearing but from the test situation itself. Thus, while a person’s refusal may constitute impeaching evidence in the criminal action, this evidence is independent of the court’s finding in the implied consent hearing and is not affected thereby. We see no merit, therefore, in the defendants’ contention that counsel is required in an implied consent hearing to argue against the court’s finding of refusal.

The defendants’ further argument that an implied consent hearing is “functionally equivalent” to a preliminary hearing in a criminal action for driving while under the influence of alcohol likewise misapprehends the nature of the implied consent hearing and its relation to that criminal proceeding. While an implied consent hearing involves a finding that the arresting officer had reasonable grounds to arrest the defendant for driving while under the influence of alcohol, the purpose of this finding is to determine whether the person’s refusal was pursuant to a lawful arrest, not to determine whether the defendant should be “bound over” for trial on the criminal charge as in a preliminary hearing. A finding favorable to the defendant in an implied consent hearing does not result in dismissal of the criminal charge but merely precludes the suspension of his driving privileges. Since an implied consent hearing involves issues other than whether a person’s arrest was proper, a favorable ruling may be the result of various grounds other than whether or not there was probable cause to make the arrest. An implied consent hearing, therefore, is unlike a preliminary hearing in purpose and effect, and the defendants cannot be said to be entitled to appointed counsel on this basis.

We note finally that appointed counsel is not required in an implied consent hearing merely because of the possibility that an uncounseled defendant may make statements in that hearing incriminating himself on the underlying criminal charge. While an individual’s constitutional guaranty against self-incrimination extends to legal proceedings of a civil nature like the implied consent hearing (People v. Davis (1973), 11 Ill. App. 3d 775, 298 N.E.2d 350), it can not be seriously maintained that indigent litigants in such proceedings are entitled to free counsel to advise them of this privilege. To interpret the right to appointed counsel in such a way would lead to the appointment of counsel in any matter requiring an indigent defendant’s appearance in court, as skilled counsel would undoubtedly benefit the defendant in any legal proceeding. A pro se defendant may, at most, be entitled to an admonition regarding the privilege against self-incrimination in a proceeding where the State is a party (cf. People v. Musil (1967), 37 Ill. 2d 373, 227 N.E.2d 751 (admonition appropriate in coroner’s inquest where defendant’s admissions used to impeach him in subsequent criminal trial)), but this does not thereby give rise to the need for appointed counsel. (See People v. Murdock (1968), 39 Ill. 2d 553, 237 N.E.2d 442.) Since an implied consent hearing is held only upon the request of the defendant and so lacks any element of coercion, we find no merit in the defendants’ argument that counsel should be appointed in such a hearing so as to guard against the possibility of prejudice in a later criminal proceeding.

In addition to their argument that counsel is required in an implied consent hearing because of the close relation between the hearing and the corresponding criminal action, the defendants assert that the consequences of the hearing itself are so severe as to give rise to the need for appointed counsel. The constitutional right to appointed counsel, however, is limited to criminal proceedings which result in actual imprisonment (Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006; Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158), and the statutory right to counsel is similarly limited. (See Ill. Rev. Stat. 1981, ch. 38, pars. 103 — 4, 113 — 3(b); ch. 34, par. 5604.) The sanction of suspension resulting from an implied consent hearing does not constitute such a deprivation of liberty and cannot be so construed. The defendant’s constitutional right to due process, though applicable in this proceeding involving suspension of driving privileges (Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586), has not been held to include the right to representation by appointed counsel. We hold, therefore, that there is no right to appointed counsel in an implied consent hearing under section 11.501.1. See 1982 Ill. Att’y Gen. Op. No. 82-017.

In a final contention of error, defendant Donald Gire asserts that, under the authority of People v. Batchelder (1982), 107 Ill. App. 3d 81, 437 N.E.2d 364, the affidavit submitted by the arresting officer in his case was constitutionally deficient for failing to set forth sufficient facts to justify his arrest for driving while under the influence of alcohol. This argument, because not raised at the hearing below, is waived for purposes of appeal. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) We note, however, that the rule of People v. Batchelder has since been repudiated in other decisions by the appellate court (see, e.g., People v. Frye; People v. Babych (1983), 112 Ill. App. 3d 704, 445 N.E.2d 921), and the case itself was recently reversed by the United States Supreme Court (Illinois v. Batchelder (1983), 463 U.S. _, 77 L. Ed. 2d 1267, 103 S. Ct. 3513). The defendant therefore has suffered no prejudice by his inability to research and argue this point in the trial court.

For the reasons set forth in this opinion, we hereby affirm the judgments of the circuit court of Effingham County.

Affirmed.

EARNS and WELCH, JJ., concur.


author: PRESIDING JUSTICE HARRISON

text:
    SISTERS OF DIVINE PROVIDENCE, d/b/a St. Elizabeth Medical Center, Plaintiff and Counterdefendant-Appellee, v. INTERSTATE FIRE & CASUALTY COMPANY, Defendant and Counterplaintiff-Appellant.
    Fifth District
    No. 82 — 642
    Opinion filed August 9, 1983.
    Rehearing denied September 7, 1983.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago, and Wagner, Bertrand, Bauman & Schmieder, of Belleville (Richard G. French, of counsel), for appellant.
    Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Interstate Fire & Casualty Company (Interstate), appeals from a grant of summary judgment in favor of plaintiffs, The Sisters of Divine Providence, d/b/a St. Elizabeth Medical Center (St. Elizabeth’s). The question presented for review is whether St. Elizabeth’s complied with a condition precedent contained in its excess malpractice insurance policy which required it to notify Interstate of an underlying lawsuit as soon as practicable, or within a reasonable time. For the following reasons, we reverse the decision of the trial court and enter summary judgment in favor of Interstate.

During the period from January 31, 1975, to January 31, 1976, St. Elizabeth’s was insured under a policy of insurance with Interstate, policy No. 155 — U-021569. The policy provided coverage for malpractice in the amount of $5,000,000 per occurrence as excess coverage over $200,000. The hospital was self-insured for the first $100,000 and insured by INA for the second $100,000.

On April 7, 1977, a lawsuit by Charles Thomas White, a minor, was instituted by his parents against St. Elizabeth’s and the attending physician. The two-count complaint alleged that on November 22, 1975, the hospital was negligent in its treatment of the child and that, as a result of the negligence, the child suffered severe and irreversible brain damage. The complaint sought damages in excess of $15,000 for each count.

The summons and complaint were served upon the hospital and its administrators. The assistant administrator sent the papers to the hospital’s own defense counsel. Copies were also sent to the secondary carrier, INA. Discovery was initiated soon thereafter, and depositions were taken as early as August 10, 1977. However, notice of the lawsuit and the possibility of a claim was not conveyed to Interstate until April 25, 1980, by a letter from the hospital’s insurance broker. The case went to trial on May 27, 1980, and was settled the next day. The settlement agreement included a payment by St. Elizabeth’s of $250,000 over and above its self-insured limits and a payment by Interstate of $350,000. It was stipulated between the hospital and Interstate at the time of the settlement that these payments would in no way affect the rights of the hospital and Interstate between themselves.

St. Elizabeth’s thereafter filed suit against Interstate for the $250,000 it paid in excess of the self-insured amount. Interstate counterclaimed for the $350,000 it contributed. Both parties filed motions for summary judgment. The circuit court of Madison County held in favor of the hospital and entered the summary judgment from which this appeal arose.

Interstate’s position on appeal is that the hospital as a matter of law, did not give the required notice of the claim by Charles White as soon as practicable, or within a reasonable time. The notice provision in the excess policy between Interstate and St. Elizabeth’s reads as follows:

“E Notice of occurrence:
Whenever the insured has information from which the insured may reasonably conclude that an occurrence covered hereunder involves injuries or damages which, in the event that the insured would be held liable, is likely to involve this policy, notice shall be given by or on behalf of the insured to the company as soon as practicable, provided, however, that failure to give notice of any occurrence which at the time of its happening did not appear to involve this policy but which, at a later date, would appear to give rise to claims hereunder, shall not prejudice such claims.”

Our review of the law indicates only one reported case in Illinois which involves an excess insurance policy. (Brownlee v. Western Chain Co. (1979), 74 Ill. App. 3d 804, 393 N.E.2d 515.) There, the court construed language in a notice clause which is identical to the language in the policy between Interstate and St. Elizabeth’s. The court declared that the notice clause imposed upon the insured the duty to notify the carrier once the insured possessed “actual knowledge” from which it could reasonably conclude that an accident would give rise to a claim under the excess policy. (Brownlee v. Western Chain Co. (1979), 74 Ill. App. 3d 804, 811-12.) Because the insured in that case, Western Chain Company, had no actual knowledge of the amount of the claim, the court reversed summary judgment which had been entered in favor of the insurer.

In the present set of circumstances, however, it is apparent that St. Elizabeth’s had actual knowledge that the White claim could exceed $200,000. Exhibits attached to the motions for summary judgment show this communication from the hospital counsel to the hospital, dated June 2,1977:

“As you can see, it appears that Charles White did contract meningitis and has suffered severe brain damage as a result.”

And, following depositions taken on August 10, 1977, the hospital’s attorney wrote on August 12 that “It should be noted that this case is extremely dangerous considering the injuries.” The injuries were described by the child’s father at the 1977 deposition. He reported that the child could not

“sit up, can’t roll over, everything has to be done for him. He can’t even crawl. Can’t hold anything in his hands, has to be fed, all he can eat is regular baby food, take water, liquid milk through a syringe. [Dr.] Regent said the damage is very serious and Tommy will never be any better.”

Another communication to the hospital administrator, dated four months later, referred to the suit as an “extremely serious case considering the damages and liability.” The following entry appeared in a letter dated February 10, 1978: “The damages which include brain damage are extensive.” Similarly, a letter from defense counsel to the hospital dated March 23, 1979, advised that: “This case should still be viewed with a great deal of seriousness considering the catastrophic injuries suffered by the baby.” In fact, the counsel for St. Elizabeth’s testified at a deposition regarding his assessment of the injuries:

“Q. ***. How long prior to the date of that letter had you considered the damagés to be catastrophic?
A. I think anything in excess of a million dollars is catastrophic. Probably even a lot less than that would be catastrophic, depending on the circumstances.
Q. All right. Are you telling me then that you had considered the damages to be catastrophic since about 1978 or early '79?
A. Well, it would depend on the circumstances. I indicated earlier that as early as those dates I was under the impression that the verdict if entered against the hospital, although we did not feel it would be, could exceed a million dollars.”

Finally, in a letter dated November 5, 1979, the counsel wrote to the hospital:

“This child is severely mentally and physically retarded. It was Dr. Regent’s opinion that the child will never be able to care for himself and will require extensive custodial care for the rest of his life.”

Thus, the plaintiff was aware in 1978 or 1979 that the child’s injuries were “catastrophic” and that an unfavorable verdict could exceed $1,000,000. The court in Brownlee cited with approval the rule that an insured’s duty to notify its excess carrier is a condition precedent to the carrier’s liability under the excess policy. (Brownlee v. Western Chain Co. (1979), 74 Ill. App. 3d 804, 810.) St. Elizabeth’s did not contact Interstate until April 22, 1980, more than three years after the suit was filed and only one month before trial. The record discloses no acceptable reason for the delay. Thus, the failure to notify Interstate as soon as practicable constitutes a breach of the insurance contract which relieves Interstate of liability.

Plaintiff has relied on the supreme court case M.F.A. Mutual Insurance Co. v. Cheek (1977), 66 Ill. 2d 492, 363 N.E.2d 809, and the rule formulated therein that breach of an insurance policy clause will not relieve the company of its liability unless the company is substantially prejudiced. It argues that Interstate should not be relieved of liability under its contract with St. Elizabeth’s because it was not prejudiced by the late notice given by St. Elizabeth’s. Our research confirms that the rule in Cheek has no application in the present case. There, the court interpreted a cooperation clause in an automobile insurance policy. (M.F.A. Mutual Insurance Co. v. Cheek (1977), 66 Ill. 2d 492, 500.) Reviewing courts since Cheek have made it clear that the underlying considerations relevant in Cheek are not necessarily present in cases involving the breach of a notice clause. (Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 302, 388 N.E.2d 253.) Thus prejudice, or the lack thereof, is not the factor which determines coverage. Instead, courts have consistently held that the determination is based upon a standard of reasonableness, i.e., did the insured give notice as soon as it was practicable for him to do so. (McFarlane v. Merit Insurance Co. (1978), 58 Ill. App. 3d 616, 619, 374 N.E.2d 951.) As was stated in Illinois Valley Minerals Corp., “prejudice to the insurer is but one factor which may be taken into consideration in making the determination as to the reasonableness of the notice in any given case.” (Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 302.) This principle was recently applied in United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 403 N.E.2d 508, where the court noted that while “an absence of actual prejudice to the insurer may be a factor to be considered in determining the propriety of the notice and the diligence of the insured, it does not conclusively establish the timeliness of the notice.” (United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 898, 403 N.E.2d 508.) It agreed with prior cases that “the issue in a case involving late notice is not whether the insurer has been prejudiced, but rather, whether reasonable notice has been given.” (United States Fidelity & Guaranty Co. v. Maren Engineering Corp. (1980), 82 Ill. App. 3d 894, 898.) Although the cited cases involve primary carriers, the same principles should apply to excess carriers as well. Consequently, plaintiff’s argument that Interstate must establish prejudice in order to be relieved of liability under the policy is without merit.

In conclusion, the record discloses that the insured did not exercise diligence in notifying its excess carrier. Further, there was no justifiable excuse for the delay. (See Illinois Valley Minerals Corp. v. Royal-Globe Insurance Co. (1979), 70 Ill. App. 3d 296, 301.) Since the facts in the present case are undisputed, the determination of whether St. Elizabeth’s gave notice to Interstate as soon as practicable is a question of law. (INA Insurance Co. v. City of Chicago (1978), 62 Ill. App. 3d 80, 83, 379 N.E.2d 34.) We hold that, as a matter of law, St. Elizabeth’s has failed to comply with the notice provision contained in its policy. The provision is a “valid [prerequisite] to coverage” (INA Insurance Co. v. City of Chicago (1978), 62 Ill. App. 3d 80, 83), and thus it was error for the court to award summary judgment to St. Elizabeth’s.

Accordingly, the summary judgment of the circuit court of Madison County is reversed. In addition, finding that there is no genuine issue of material fact and that Interstate is entitled to judgment as a matter of law on its counterclaim, we hereby enter summary judgment in favor of Interstate Fire & Casualty Company and against Sisters of Divine Providence, d/b/a St. Elizabeth Medical Center, an Hlinois Corporation, in the amount of $350,000 and costs of suit.

Reversed.

KASSERMAN and WELCH, JJ., concur.


author: JUSTICE KASSERMAN

text:
    RICHARD LEE PETERSEN, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant.
    Fifth District
    No. 82 — 699
    Opinion filed August 8, 1983.

      James P. Daley, Ronald J. Cuchna and John P. Milroy, of Chicago, for appellant.
    Randolph E. Schum and Paul L. Pratt, P.C., both of East Alton, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Plaintiff, Richard Lee Petersen, filed an action for damages in Madison County, Illinois, under the Federal Employers’ Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)), alleging that he sustained personal injuries while employed by defendant, Chicago and North Western Transportation Company. Defendant’s motion to dismiss the complaint based upon the grounds of forum non conveniens was denied by the trial court. This court granted defendant’s petition for leave to appeal under the provisions of Supreme Court Rule 306(a)(l)(ii) (87 Ill. 2d R. 306(a)(1)(ii)).

In support of its motion to dismiss on the grounds of forum non conveniens, defendant filed the affidavit of John H. Caster, the assistant vice-president of general claims for defendant. Mr. Caster’s affidavit stated, inter alia, that: (1) plaintiff was a resident of Martensdale, Iowa, which is approximately 340 miles from the county seat of Madison County; (2) the incident upon which plaintiff’s action is based occurred at Des Moines, Iowa, which is also about 340 miles from the county seat of Madison County; (3) defendant is a Delaware corporation with its principal office at Chicago, Illinois; (4) defendant’s “employees who were fellow workers and supervisors of plaintiff at the time of said incident and whose appearance may be required as witnesses at the time of trial, reside in or near Des Moines, Iowa”; (5) “plaintiff was treated for injuries as a result of the alleged occurrence at Iowa Methodist Medical center which is located in Des Moines, Iowa”; (6) “it may be necessary to call as witnesses physicians who have treated or examined the plaintiff as a result of his alleged injuries, including Dr. J. Fellows from Des Moines, Iowa”; and (7) trial in Madison County, Illinois, would cause a severe economic burden and inconvenience for each witness.

Defendant also filed a memorandum of law in support of its motion to dismiss. Included in defendant’s memorandum were statistics obtained from the Administrative Office of the Illinois Courts which indicated that in 1981 the average delay from the date of filing to the date of verdict in civil cases in excess of $15,000 in Madison County was 34.5 months and that in 1980 the delay was 32.9 months.

Plaintiff filed an affidavit and memorandum in opposition to defendant’s motion to dismiss. Among other things, this document stated that: the defendant had its principal place of business in Chicago and owned track, equipment, and buildings in Madison County; plaintiff’s attorneys were appointed by plaintiff’s union and there were no union appointed attorneys in Iowa; and, based upon the experience of plaintiff’s attorneys, FELA cases are tried on the average within 18 months of filing.

The legal memoranda of both parties argued at length that the trial court should balance the relevant factors in their favor. Oral arguments concerning the defendant’s motion to dismiss on the basis of forum non conveniens were heard by the trial court on July 14, 1982, and on November 3, 1982, the trial court entered an order which simply stated that defendant’s motion was denied. It is this order which defendant has appealed to this court. We reverse.

Before considering defendant’s contention on appeal that the trial court abused its discretion in denying its motion to dismiss, we address two assertions made by plaintiff in his brief. First, plaintiff, relying on Cotton v. Louisville & Nashville R.R. Co. (1958), 14 Ill. 2d 144, 152 N.E.2d 385, maintains that defendant’s motion to dismiss on the basis of forum non conveniens was inadequate because it failed to name the potential witnesses to be called and specify the type of testimony anticipated. We do not agree. The motion rejected by the court in Cotton for lack of specificity did not indicate the particular witnesses whose testimony was anticipated to be presented. Such a motion provided less particularity than the information provided by the motion and supporting affidavit in the instant case. While the motion in Cotton vaguely referred to “occurrence witnesses” and “doctors” (14 Ill. 2d 144, 168, 152 N.E. 2d 385, 397), the affidavit in this case specifically refers to witnesses who are “fellow workers and supervisors of plaintiff” and names a particular doctor as the treating physician. Additionally, we note that the United States Supreme Court in Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252, rejected a similar contention that specificity is required in a motion to dismiss on the basis of forum non conveniens.

Plaintiff further contends that the question regarding the propriety of the forum must be determined subsequent to a trial of the cause. Supreme Court Rule 306(a)(1)(ii) (87 Ill. 2d R. 306(a)(1)(ii)) expressly authorizes the allowance of a petition for leave to appeal from an order of the circuit court denying a motion to dismiss on the grounds of forum non conveniens. Further, the rationale underlying the doctrine of forum non conveniens is that it promotes fairness and efficient judicial administration. (Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d Ill. 117, 427 N.E.2d Ill. 114.) To permit the parties to fully litigate a case and then determine that the forum was not appropriate would defeat these purposes. For these reasons, we reject plaintiffs contention that the determination of the propriety of the forum should be delayed.

Defendant contends on appeal that the trial court’s determination that the doctrine of forum non conveniens does not prevent this cause from proceeding to trial in Madison County, Illinois, was an abuse of discretion. We agree.

Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d Ill. 427 N.E.2d Ill. is dispositive of the instant appeal. In Espinosa, our supreme court stated that a plaintiff’s selection of a forum should not be disturbed under the doctrine of forum non conveniens unless the balance of relevant factors required to be analyzed strongly favors the defendant. (86 Ill. 2d Ill. 119, 123, 427 N.E.2d Ill. 115, 117.) According to the Espinosa court, among the relevant factors to be considered are: (1) the interest of plaintiff in choosing his forum; (2) the extent of the connection between the action and the forum; (3) access to sources of proof; (4) the availability and cost of obtaining witnesses; (5) the availability of compulsory process for attendance of unwilling witnesses; (6) the possibility of viewing the premises; (7) the burden of jury duty on citizens of the forum; and (8) judicial congestion in the forum. 86 Ill. 2d Ill. 118-19, 427 N.E.2d Ill. 115.

Only the first factor listed above weighs heavily for plaintiff in the case at bar. Our courts have long recognized that strong considerations of policy favor a plaintiff’s choice of forum in FELA cases. (See Liepelt v. Norfolk & Western Ry. Co. (1978), 62 Ill. App. 3d 653, 658, 378 N.E.2d 1232, 1238, reversed on other grounds (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755, rehearing denied (1980), 445 U.S. 972, 64 L. Ed. 2d 250, 100 S. Ct. 1667.) Nevertheless, as observed by the court in Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 378, 444 N.E.2d 157, 162-63, “there are numerous cases which properly accord less deference to a foreign plaintiff’s choice of forum. (E.g., Piper Aircraft Co. v. Reyno ***; see Espinosa v. Norfolk & Western Ry. Co. *** (plaintiff’s nonresidence is a factor favoring dismissal).)” In the case at bar, the policy considerations favoring an FELA plaintiff’s choice of forum are the result of the express provisions of the Federal Employer’s Liability Act. However, consideration is required to be given to the factors set out in Espinosa; and, when that is done, we conclude that the trial court erred in denying defendant’s motion. The fact that plaintiff files an FELA action does not ensure his choice of forum where, as here, plaintiff selects a forum with virtually no connection with the case. As stated in Espinosa, it is desirable to have localized litigation of local controversies. (86 Ill. 2d Ill. 119, 427 N.E.2d Ill. 115.) In the instant case, the parties, the place of occurrence, and the witnesses are all located in or near Des Moines, Iowa. We conclude, therefore, that it is improper to permit plaintiff to select Madison County, Illinois, as the venue for the trial of his suit.

The other factors required by Espinosa to be considered all favor defendant. The primary sources of proof are in Iowa. The witnesses are in Iowa, and the cost of obtaining them would be significant. Compulsory process for such witnesses is not available in Illinois. Further, the burden of jury duty is imposed upon Illinois citizens for this foreign controversy. All of these factors weigh heavily in defendant’s favor. Additionally, the condition of the court calendar in the forum selected is a significant consideration. (Fender v. St. Louis Southwestern Ry. Co. (1971), 49 Ill. 2d 1, 6, 273 N.E.2d 353, 356; Foster v. Chicago & North Western Transportation Co. (1983), 115 Ill. App. 3d 253, 257-59 (Jones, J., dissenting).) Here, defendant tendered statistics suggesting a rather heavy court calendar in Madison County. This fact also weighs in defendant’s favor.

We conclude that the balance of relevant factors strongly favors defendant in the case at bar and that the trial court, therefore, erred by denying defendant’s motion to dismiss on the grounds of forum non conveniens.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed.

Reversed.

JONES and EARNS, JJ., concur.


author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY G. FLOYD, Defendant-Appellant.
    Fifth District
    No. 81 — 314
    Opinion filed August 9, 1983.

      Randy E. Blue and Susan A. Diehl, both of the State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Thomas H. Sutton, State’s Attorney, of Carmi (Stephen E. Norris and Mary W. Richardson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Tommy Gordon Floyd, was charged by information with the murder of his wife, Avinelle Floyd. Following a jury trial in the circuit court of White County, defendant was convicted of murder and sentenced to 30 years’ imprisonment. On appeal, defendant contends that the trial court erred in admitting certain hearsay statements made by the victim shortly before her death and in instructing the jury that defendant had confessed to murder.

The first witness to testify at trial was Chief Deputy Sheriff Mark Hall. Hall testified that on March 31, 1980, he received a report from Ray Yates and Chelsea Staley regarding an abandoned car parked near the Grindstone Creek Bridge. Yates and Staley believed that the car belonged to Avinelle Floyd whom they were aware did not report to work that day. After ascertaining that she was not at home, Hall, Yates and Staley went to the bridge where the car was parked. Hall checked the license on the car and determined that it was registered to Floyd’s Auto Repair in Herald, Illinois. The three men then proceeded to climb under the bridge where they found Mrs. Floyd’s body face down in water with her jeans down between the ankles and knees and the jean jacket and sweater blouse above her waist.

Tom Martin, a crime scene technician in the Illinois Department of Law Enforcement testified that on March 31, 1980, he responded to a call from the sheriff’s department in Carmi. Martin prepared a diagram from photographs taken at the scene and testified that the bridge was a 20 foot by 15 foot concrete slab bridge without railings or barriers. He stated that the distance from the top of the slab to the bottom of the creek bed at the middle of the bridge was seven feet, six inches. Martin further testified that a forensic scientist examined scrapings from the fingernails of the decedent and found sand and gravel under the nails.

Paul L. Trefftzs, a funeral director and White County coroner, stated that he was called to the scene and informed that there was a body under the bridge. Civil defense technicians removed the body and placed it in a body bag and brought it to the funeral home where an autopsy was performed the next day. Trefftzs embalmed the deceased and testified that a picture of the victim showed bruises on the forehead, around the neck and right arm, a laceration on the left ear, parched lips and a broken nose.

Charles E. Hatfield, the father of the decedent’s first husband and paternal grandfather of the three children of that marriage recounted that decedent expressed concern for her safety. He testified that decedent told him that she had given her children his phone number and said that if anything happened to her would he come and get the children at once. When Hatfield asked her why she was making this request, she said that she could not tell him over the telephone. Hatfield stated that this conversation occurred approximately a week before her death. Angela Hatfield, decedent’s daughter, corroborated her grandfather’s testimony.

The State introduced the testimony of several other witnesses who testified that decedent had expressed concern for her safety. Gary Finch, the attorney who represented Mrs. Floyd in her divorce proceeding against defendant, which never became final, testified over defendant’s objection that decedent indicated that there was a possibility of physical violence. He testified that he told her to inform the sheriff so that he would be prepared in the event she needed to call him. Linda Murphy, a neighbor and friend of Mrs. Floyd, stated that after filing for divorce decedent had stated that she was worried about her physical safety. Sheriff Duckworth and Don Merritt also testified regarding decedent’s concern.

Don Merritt, a family friend, testified regarding his visit to the Floyd residence on March 30, 1980. Merritt stated that defendant had broken a fan belt on his wife’s car and told him that he was trying, “*** to stall Nell off from going to town *** until after 6 o’clock.” Merritt further testified that defendant told him that he was going to take his wife to Shawneetown to get her drunk.

Vivian Hickerson, a neighbor of Mrs. Floyd and Barbara Jean Ray, a former waitress at the Levee Tavern in Shawneetown, both testified that defendant and his wife were in the tavern on the evening of March 30, 1980. That evening Mrs. Floyd informed Hickerson that she and her husband were getting a divorce. Hickerson testified that Mrs. Floyd confided in her that her husband was attempting to get her drunk “to get a little,” but that he was not going to be successful.

On the evening of March 31, 1980, Mr. and Mrs. Don Merritt, Mr. and Mrs. Richard Smith and Linda Mundy gathered at the Floyd residence after learning that Avinelle Floyd had not returned home from the previous night and did not report to work that day. They testified, over defendant’s objection, that defendant told them that he and his wife had argued on their way home from Shawneetown and that she ordered him out of the car and that he then walked and hitchhiked home. After an unsuccessful search for Mrs. Floyd, they returned to the Floyd home where they were informed by the sheriff and the coroner of her death.

Illinois Department of Law Enforcement Agent Steve Huggins testified that he interviewed defendant on several occasions. On the morning of April 1, 1980, and later that afternoon, defendant gave substantially the same account of events to Huggins as he had to family friends the previous evening. On April 10, 1980, Huggins interviewed defendant in the presence of Don Merritt. In his statement which was reduced to writing and later introduced into evidence, defendant stated that he drove with his wife in her car from Shawneetown to Carmi. During the trip to Carmi, defendant made sexual advances which his wife refused. She asked him to stop the car because she had to urinate and he then drove to the Grindstone Creek Bridge. Mrs. Floyd urinated behind the car and as she was standing up, defendant approached her and attempted to embrace her. Defendant then stated, “I don’t know if I hit her, but I grabbed her and we fell into the creek.” Defendant stated that he then left the creek and walked home.

At approximately 2 p.m. the same day, defendant repeated his statements to Sheriff Duckworth adding that he may have tried to draw his wife close to him before they fell into the creek and that he had seen bubbles around her head after they fell. Later that day, defendant told the sheriff that he had discarded his boots at his Indiana jobsite and had thrown his clothing into the Wabash River. The following day Huggins interviewed defendant “*** to see if any of the things in Tom Floyd’s mind had cleared up following a night’s rest.” Huggins testified that defendant replied that, “I keep thinking I held her head under, but I didn’t mean to hold it under too long. I was just trying to get her to come to me.” Huggins further testified that defendant inquired about bond and when he was informed that bond may not be allowed, stated, “I did it. You guys know I did it. I need to get out and see the kids.”

Dr. A. J. Venables, a pathologist, testified that Mrs. Floyd died as a result of asphyxia from drowning. On cross-examination, Dr. Venables stated that he did not believe that the bruises on the decedent’s face and head or her fractured nose were caused by blows from a fist. According to Dr. Venables, these injuries could have been caused by the body striking rocks in the water. He further testified that in his opinion these injuries would not have been sufficient to render her unconscious at the time she fell into the water.

Defendant testified in his own behalf as to the events of March 30, 1980. Defendant stated that he had worked on his wife’s car that afternoon and after repairing it they took it out for a test drive. Although he drove to Shawneetown, defendant stated that this was not his intention when he left his home that afternoon. In addition, defendant denied telling Don Merritt that he was taking his wife to Shawneetown to get her drunk.

Defendant recounted visiting the Levee Tavern in Shawneetown and dancing with his wife during the evening. After leaving the tavern, they drove to Carmi so that she could pick up the school bus that she drove. When she stated that she had to go to the bathroom, defendant pulled the car over to the side of the road. Defendant stated that he began holding and kissing his wife outside the car and, after moving, they fell off the bridge. Defendant then stood up and saw his wife’s motionless body floating on top of the water. Believing that she was dead, defendant panicked and walked home. Defendant testified that he did not strike his wife, nor did she strike him.

Defendant’s first contention on appeal is that the trial court erred in admitting testimony concerning decedent’s expressed fears for her physical safety. Defendant contends that such statements were inadmissible hearsay which was irrelevant because it was defendant’s intent, and therefore his state of mind, which was the critical issue in the case, considering that all the evidence established that regardless of her possible fears, she voluntarily accompanied her husband for an evening of dancing and drinking at Old Shawneetown. The State, on the other hand, maintains that defendant waived this issue on appeal because he did not object to some of the statements, and the objections he did make were based on nonhearsay grounds. The State further maintains that, in any event, the testimony was properly admitted under the state-of-mind exception to the hearsay rule.

An objection to hearsay testimony must be made at the time of its introduction and should designate the particular testimony considered objectionable and the specific reason for the objection. Failure to make a timely and proper objection or to move to strike hearsay testimony after its admission constitutes a waiver. People v. Patterson (1981), 102 Ill. App. 3d 844, 430 N.E.2d 574.

In the present case, six witnesses testified regarding the decedent’s expressed fears for her safety. Defendant objected to the testimony of the first two of these witnesses, Charles Hatfield and Gary Finch, on the grounds that the testimony was irrelevant and remote in time and was overruled on both occasions. In his post-trial motion, defendant again objected to the admission of this testimony on the same grounds. We believe that defendant’s timely objections have preserved for review the admissibility of Hatfield and Finch’s testimony. Furthermore, we believe that defendant’s objection on relevancy grounds identified the principal issue regarding the admission of decedent’s extrajudicial statements.

It is well settled that statements which indicate the declarant’s state of mind are admissible as exceptions to the hearsay rule when the declarant is unavailable to testify and there is a reasonable probability that the preferred hearsay statements are truthful. (People v. Lang (1982), 106 Ill. App. 3d 808, 436 N.E.2d 260.) In order to be admissible, however, the declarant’s state of mind must be relevant to a material issue in the case. It is the determination of whether the challenged statements are relevant which is the crux of the admissibility problem before us and the focus of our discussion.

The admissibility of extrajudicial statements under the state-of-mind exception has been addressed in numerous cases, but certainly one of the most thorough and extensive examinations of the subject can be found in United States v. Brown (D.C. Cir. 1974), 490 F.2d 758. In that case, defendant was convicted of murdering a man who was believed to be a link in defendant’s drug distribution network. On appeal, defendant contended that the court erred in admitting the testimony of the victim’s wife that her husband had told her that he was frightened that he would be murdered by defendant. The court agreed with the defendant and reversed his murder conviction, stating that there was no issue in the case which would justify an inquiry into the victim’s state of mind.

Much of the court’s lengthy discussion in Brown was devoted to the question of whether the victim’s statements were relevant to some matter at issue in the case. In its analysis of this question, the court stated that the threshold requirement of admissibility of hearsay statements of fear of defendant is some substantial degree of relevance to a material issue in the case such as where defendant raises a claim of self-defense, suicide or accidental death. (490 F.2d 758, 767.) The court noted that a second requirement is that the extrajudicial statements must be probative of the victim’s state of mind. 490 F.2d 758, 774.

In the instant case, defendant asserts that the statements attributed to the decedent are irrelevant because defendant’s state of mind and not that of the decedent was at issue in the case. The State, by contrast, maintains that the challenged testimony is admissible because defendant put decedent’s state of mind at issue by alleging that her death was accidental.

The court in Brown presents an example in which a victim’s extrajudicial statements of fear would be appropriate where accidental death is alleged by defendant. The example given is a situation in which the victim picked up defendant’s gun and was accidentally killed while toying with it. The court stated that in such cases decedent’s statements of fear as to guns or of defendant (showing he would not go near defendant under any circumstances) are relevant in that they rebut this defense. 490 F.2d 758, 767.

This example presents a situation far removed from the one now before this court. In the instant case, defendant’s claim that his wife’s death was accidental depended on the jury’s believing his version of the facts and thus placed his state of mind at issue. The State, however, sought to interject decedent’s state of mind into the case by preferring her out of court statements during its case-in-chief. Unlike the example in Brown, the statements regarding decedent’s fear of defendant served no purpose other than to allow the jury to infer that defendant was guilty of murder, when in fact all the evidence established that the deceased voluntarily accompanied defendant to the Levee Tavern in Shawneetown.

The question of whether the victim’s state of mind is relevant in a murder prosecution has been considered previously in this State. In People v. Goodman (1979), 77 Ill. App. 3d 569, 396 N.E.2d 274, defendant who was charged with murdering her husband contended that she acted in self-defense. To rebut this claim, the State presented the testimony of four witnesses who stated that defendant, a police sergeant, had told them that he was afraid of his wife and as a result, hid his ammunition when he returned home from work. Although the court reversed the conviction on the basis of insufficient evidence, it stated that this testimony was admissible under the state-of-mind exception to the hearsay rule in that such statements were offered only to show that decedent had a habit of unloading his weapon and hiding his ammunition. The court further noted that the victim’s statements were not admissible to establish that his wife shot him.

The extrajudicial statements of the victim also were admitted into evidence in People v. Lang (1982), 106 Ill. App. 3d 808, 436 N.E.2d 260, a case in which defendant was charged with and convicted of murdering his wife. In that case, defendant testified that he had a good marriage and he believed that decedent was also happily married. Defendant further testified that decedent was accidentally shot while she struggled with defendant over a shotgun during a rare marital argument. To contradict defendant’s testimony, the State offered the testimony of three witnesses who testified that within two weeks of her death, decedent indicated that she was unhappy in her marriage and that she intended to leave him. The appellate court upheld the admission of the rebuttal testimony as to decedent’s state of mind, noting that it was relevant to rebut the defense testimony concerning the marital accord between defendant and decedent, to respond to defendant’s version of how his wife was shot and to suggest a possible motive for the crime. 106 Ill. App. 3d 808, 815, 436 N.E.2d 260, 266.

We believe the above cases are distinguishable from the one before us because the challenged testimony in those cases was not offered merely for the purpose of establishing that defendant killed the decedent. In both cases, decedent’s state of mind was relevant to an issue other than the ultimate question of guilt. In the present case, the statement that the decedent was afraid of defendant, coupled with her death, was only offered to suggest that defendant murdered her, an inference obviously extremely prejudicial to defendant’s defense. After reviewing the questionable relevance of decedent’s statements and the considerable prejudice inherent in them, we believe the trial court committed reversible error by admitting the statements into evidence.

Although we could rest our decision on the evidentiary issue alone, we will address defendant’s remaining contention, which we believe has merit. In his second argument, defendant contends that the trial court erred in giving Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.07 (1968), which states as follows:

“You have before you evidence that the defendant confessed that he committed the crime charged in the indictment. It is for you to determine whether the defendant confessed, and, if so, what weight should be given to the confession. In determining the weight to be given to a confession, you should consider all of the circumstances under which it was made.”

Defendant contends that the giving of IPI Criminal No. 3.07 was improper because, although he made certain incriminating admissions, none of these statements constituted a confession to murder.

Defendant made several statements which the State maintains supports the trial court’s instruction to the jury. Among the incriminating evidence are certain statements made by defendant to Special Agent Steve Huggins regarding his recollection of the evening of March 30, 1980. Defendant acknowledged that he and his wife fell off the bridge while he was making sexual advances to her and that he left her laying face down in the water. He further admitted that he discarded his clothes and boots that he had worn that evening. Defendant also made the damaging statement that “I keep thinking I held her head under, but I didn’t mean to hold it under too long I was just trying to get her to come to me.” When he was informed that bail might not be allowed, defendant told Huggins, “I did it. You guys know I did it. I need to get out and see about the kids.”

In order to constitute a confession, defendant’s statements must admit all the necessary elements of the crime charged. (People v. Williams (1976), 37 Ill. App. 3d 151, 345 N.E.2d 705.) The acknowledgement of facts merely tending to establish guilt is not a confession but an incriminating admission. People v. Oliver (1977), 50 Ill. App. 3d 665, 365 N.E.2d 618.

The thrust of defendant’s argument is that he did not confess to murder because he did not admit the necessary criminal intent or mens rea. Instead, defendant maintains that his statements disclose that he did not have the requisite intent and that, at most, he confessed to involuntary manslaughter.

After reviewing the record, we believe that defendant’s statements did not constitute a confession to murder. Although we realize that a confession to a criminal act need not be made in the words defining the offense, People v. Cartwright (1975), 33 Ill. App. 3d 180, 337 N.E.2d 237, it must satisfy all the elements of the crime. In the present case, defendant made certain incriminating statements regarding the events which transpired on the evening in question. We do not believe, however, that defendant’s statements are inconsistent with his contention that his wife’s death was accidental. Although an involuntary manslaughter instruction was given, the court’s informing the jury that it had heard evidence that defendant confessed to murder could only discourage them from properly evaluating the lesser charge. Consequently, we find that the trial court erred in giving IPI Criminal No. 3.07.

For the foregoing reasons, the judgment of the circuit court of White County is reversed and the cause is remanded to the circuit court of White County for a new trial.

Reversed and remanded.

KASSERMAN and JONES, JJ., concur.