dissenting:
I respectfully dissent.
The majority holds that plaintiff’s instructions 16 and 17 which were given by the trial court over defendant’s objection, were erroneous. For the following reasons, I am compelled to dissent from the majority holding that these errors were “harmless.” “The importance of correct instructions was commented on in the case of Sharp v. Brown, 349 Ill. App. 269, the court there saying: ‘It has long been the law that a jury must be especially accurately instructed if the case be one where the facts are close and where a verdict could easily favor either party in the suit.’ This is very true where the evidence is in dispute * * (Parkin v. Rigdon (1954), 1 Ill. App. 2d 586, 592, 118 N.E.2d 342.) The evidence of the Schwears’ abuse of their admitted position of trust and confidence with the decedent was in dispute, hence more than a cursory examination of the effect of the erroneous instructions is mandated.
The reference in instruction 17 to Iva Corbett as “enfeebled by age and disease” was unsupported by any evidence adduced at trial. Quite to the contrary, the evidence indicated that she was clear-headed and alert. By suggesting that the decedent may have been so enfeebled, the instruction impermissibly suggested that the decedent was susceptible to influence. This may have predisposed the jury to find that undue influence existed. Appellant was thereby prejudiced since the jury would have decided the facts partially on the basis of material not in evidence, but contained only in the instruction. (Challiner v. Smith (1947), 396 Ill. 106, 123, 71 N.E.2d 324.) Concomitant with this, the giving of instruction 17 was also error in that the instruction indicated that undue influence may be established by proof of specific conduct, and no evidence of specific conduct constituting undue influence concerning the will proffered by the Schwears was introduced at trial. The will written in Durr’s office was never signed, and there was no showing that the second will was factually related to the last purported will. The instruction prejudiced appellant, and hence was reversible error, by suggesting, without basis, to the jury a ground on which a plaintiff’s verdict could be returned. If any instruction was warranted by the evidence, IPI Civil No. 200.03, and not IPI Civil 200.04, should have been given to conform with the evidence actually before the jury. Compare Illinois Pattern Instructions, Civil, No. 200.03 and No. 200.04 (2d ed. 1971) (hereinafter cited as IPI Civil).
The instruction defining fiduciary relationship also prejudiced appellant in that the instruction may have misled the jury. This non-IPI Civil instruction was formulated by the trial court in apparent reliance on Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 234 N.E.2d 91, on which case the majority also relies. Swenson asserts that a fiduciary relationship “exists where there is a special confidence reposed in one, who by reason of such confidence, must act in good conscience and in good faith and with due regard to the interests of the person reposing such confidence.” (Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 100.) This somewhat circular definition misstates the law as announced by our supreme court; a definitional requirement of the concept of fiduciary relationship is that superiority and influence result from the relationship of confidence and trust. (Wiik v. Hagen (1951), 410 Ill. 158, 163, 101 N.E.2d 585, 587; Kolze v. Fordtran (1952), 412 Ill. 461, 468, 107 N.E.2d 686.) Absent resulting superiority and influence, the mere fact of mutual trust and confidence is not enough to constitute a fiduciary relationship. (Redmond v. Steele (1955), 5 Ill. 2d 602, 610, 126 N.E.2d 619.) Were this otherwise, even the most casual and mundane relationship might be elevated to fiduciary status based on a commonplace degree of trust and confidence. The line of cases issuing from the supreme court, cited above, holds consistently that to create a fiduciary relationship, a position of superiority and influence must result from the repose of trust and confidence. By failing to indicate that superiority and influence are prerequisites to a finding of fiduciary duty, even where trust and confidence exist, Swenson misstates the law. It necessarily follows that the jury instruction was fatally defective, since the jury could have been induced to find that a fiduciary relationship existed where the elements necessary therefor were lacking. (Belfield v. Coop (1956), 8 Ill. 2d 293, 311, 134 N.E.2d 249.) The appropriate approved pattern instruction, IPI Civil No. 200.03, correctly states the law by indicating that only if trust and confidence are reposed “to such extent that [beneficiary’s name] could have exerted undue influence * 0 *,” is a fiduciary relationship formed. (The Comment to IPI Civil No. 200.03 indicates that the “instruction does not use the term ‘fiduciary relationship’ because it is more meaningful to state that concept in terms of its connection with undue influence.” (IPI Civil No. 200.03, Comment, at 510) (2d ed. 1971).) “Supreme Court Rule 239 requires that Illinois Pattern Jury Instructions be given when the jury is to be instructed on a subject, if an applicable instruction is available. It has long been and will continue to be our policy to require the use of the Illinois Pattern Jury Instructions unless the trial judge, when considering the facts and prevailing law. finds that the instruction inaccurately states the law.” (Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 567, 361 N.E.2d 134.) Because the instruction which was given did not provide the jury with the correct law to apply to the facts of the case, and the pattern instruction would have embodied the correct rule, appellant was prejudiced and the decision of the trial court should be reversed. (Belfield v. Coop (1956), 8 Ill. 2d 293, 311.) The attempt to define fiduciary duty in this case only serves to point up the wisdom of utilizing the approved pattern instructions, where applicable, so as to avoid this type of prejudicial confusion.
In addition, if the trial court had properly applied the law governing fiduciary relationships, a directed verdict for defendant would have been the only appropriate disposition of the case, since no evidence was adduced at trial to support submission of the case to the jury on the issue of fiduciary relation. Although the decedent had an attorney draw up reciprocal wills for her and for defendant, these were never executed. This evidence of the Schwears’ unsuccessful attempt to influence the decedent only indicates that the relationship between the Schwears and Iva Corbett was not a fiduciary relationship. None of plaintiff’s other evidence went to the existence of superiority and influence over the decedent, so there was no evidence before the court which tended to establish one of the elements of plaintiff’s cause of action. Defendant’s motion for a directed verdict should therefore have been granted. (Knudson v. Knudson (1943), 382 Ill. 492, 499-500, 46 N.E.2d 1011.) Consequently, I would reverse the decision of the trial court and enter judgment accordingly.