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    LARRY SCHEIBEL, Plaintiff-Appellee, v. RICK GROETEKA, Defendant-Appellant.
    Fifth District
    No. 5—87—0169
    Opinion filed May 4, 1989.

      Cornelius Thomas Ducey, Jr., and Rhonda J. Kattelman, both of Ducey, Feder & Ducey, Ltd., of Belleville, for appellant.
    Pamela A. Klekner, of Dunham, Boman & Leskera, of East St. Louis, and Dale M. Funk, of Apoian, Ross & Funk, P.C., of Belleville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Rick Groeteka, appeals from a jury verdict entered in the circuit court of St. Clair County against defendant and in favor of plaintiff, Larry Scheibel, for $100,000 reduced by 50% for plaintiff’s negligence, for a total of $50,000, for damages occasioned by alleged negligence in a car accident. This court affirms.

On December 9, 1980, plaintiff filed this action seeking $6,248.68 plus court costs. On March 9, 1981, plaintiff filed an amended complaint against defendant seeking no more than $50,000. On July 20, 1981, defendant filed his answer. On March 19, 1985, the case was voluntarily dismissed after opening statements, but prior to any witnesses being called. On April 18, 1985, plaintiff refiled the lawsuit against defendant. On July 14, 1986, defendant moved to amend his answer to plaintiff’s amended complaint. On July 24, 1986, the trial court granted defendant’s motion to amend. On September 17, 1986, plaintiff filed an amended complaint seeking $121.73 for property damage to plaintiff’s vehicle. Later, plaintiff voluntarily dismissed this count.

The trial started on September 17, 1986, and was completed on September 19, 1986. On September 17, 1986, prior to trial, plaintiff moved to bar defendant’s expert witness, Dr. Simon Homstein, from testifying. The trial court found that plaintiff’s interrogatories requesting a disclosure of experts under Supreme Court Rule 220 (107 Ill. 2d R. 220) had been answered by defendant with proof of service on August 19, 1986, and disclosed no experts. Further, at the time of voir dire of the jury, defendant did not disclose Dr. Homstein as a witness expected to testify at trial. Plaintiff’s motion to bar expert witness, Simon Homstein, was granted.

On September 19, 1986, the trial court also barred defendant from introducing the testimony of F.J. Accardio because defendant did not disclose him as a witness expected to testify at trial at the time of jury voir dire. Counsel for defendant then made an offer of proof. Had Accardio been allowed to testify, he would have stated that he had examined defendant’s vehicle in May 1980 and had found no damage to defendant’s vehicle nor any evidence of repairs.

After opening statements were made by parties, defendant moved for a mistrial based upon plaintiff’s counsel’s statement that plaintiff was working only because of his poor financial condition. The trial court denied defendant’s motion for a mistrial. On September 18, 1986, plaintiff called his first witness, the defendant, pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1102). Defendant testified that on the date of the accident, February 20, 1980, he was 20 years old and lived with his parents. Defendant owned a black Ford pickup truck which he had purchased in 1978. The truck had a black roll bar in the bed and a brush bar on the front grill. According to defendant, there were decals on the front, back, and sides of the truck which had been put on at the factory. On the back of the truck there was a “Ford” emblem, orange in color, which measured 6 inches by 41/2 feet. Defendant stated that he had several license plates on the truck and could not remember the plate number which was on the truck on February 20,1980.

Defendant denies any involvement in a collision on Shiloh Road at the Route 50 intersection on February 20, 1980, or knowing plaintiff prior to the filing of this lawsuit. Defendant testified that on February 20, 1980, he had arrived at the home he shared with his parents at approximately 6:30 or 7 a.m. after working from 8 p.m. to 6 a.m. He took a shower, ate breakfast, and then went to bed between 8:30 and 9 a.m. He woke up at approximately noon when his fiancee came by for lunch. He stated that his fiancee stayed approximately 45 minutes to one hour. He then went back to sleep on the couch. He testified that the truck was not there when his girlfriend came because his mother had taken it. Defendant did not check to see if his truck was in the driveway. His knowledge that the truck was gone was based upon his mother’s telling him she had borrowed the truck and his fiancee’s statement that his truck was not in the driveway.

Plaintiff was the next witness called to testify. Plaintiff testified that on February 20, 1980, he was living on Little Oak School Road just northeast of 0’Fallon. On that day, plaintiff left his home around noon to bid on a fencing job. Plaintiff had his own fencing company at this time. Plaintiff was in his 1975 Chevrolet pickup truck, which was in good mechanical condition. At the intersection of Little Oak School Road and Scott-Troy Road, not far from plaintiff’s home, plaintiff saw a black Ford pickup truck with a roll bar stopped and throwing garbage out into a ditch. There were two occupants in the truck, both white males with small to medium builds. One was in the back throwing garbage out. When they saw plaintiff, they got in their truck and left. Plaintiff was following behind the truck and was able to get the license plate number. Plaintiff wrote down the number on an envelope which had been lying in the seat next to him. Initially, plaintiff planned to give the license plate number to the sheriff’s office and let them take care of it. He then followed the truck toward Highway 50. Plaintiff testified he was not in pursuit of the truck, as he was on his way to a bid and the truck was going the same direction. When the black Ford pickup truck got to Highway 50, it made a right turn and headed toward O’Fallon, which was the same direction plaintiff had to go. Plaintiff then followed the black truck on Highway 50 to the Shiloh Road intersection where both vehicles had to stop because of a stop sign. The black Ford was going to turn left. There was no oncoming traffic so plaintiff decided to pull around the black vehicle and make the driver pull over. Plaintiff wanted to tell the occupants of the truck that if they picked up the garbage, he would not call the sheriff’s office and turn over the license plate number. As both vehicles turned left onto Shiloh Road, plaintiff testified that he turned his flashers on and pulled up alongside the black Ford. Plaintiff also testified that he honked his horn. The driver looked over and plaintiff motioned for the black truck to pull over. Plaintiff estimated both vehicles were traveling at approximately 10 miles per hour. Plaintiff then pulled around the front of the black Ford, physically turned his body around to look back at the black truck and at the same time eased up on the gas. The black truck was directly behind plaintiff and collided with him in the right lane of traffic. The force shoved plaintiff forward. The black truck went into the ditch, kept on moving, went around plaintiff, and drove toward Shiloh.

On cross-examination, plaintiff testified that he was not sure whether his brake lights or his blinkers were on when he pulled ahead of the black truck. Plaintiff did not get a close look at the two people in the truck. Plaintiff does not know their hair color or if they were wearing hats. Further, plaintiff could not positively identify defendant as the driver of the black Ford.

After impact, plaintiff got out of his truck to look for damage. The only thing plaintiff saw was a cracked windshield. Over defendant’s objection, plaintiff testified that in his opinion the driver of the black truck had the opportunity to stop his vehicle and avoid the impact.

Immediately after the collision, plaintiff’s back bothered him slightly, but he continued on to his destination. Plaintiff did stop and call the sheriff’s office to make a report over the phone. Later, a deputy sheriff came out and took a full statement. The sheriff’s department did not locate a black Ford truck with the license plate number plaintiff had given them, being 444 023B. Plaintiff went home and lay down because his back and neck were irritating him.

The next day, plaintiff woke up and his back and neck pains were worse. Plaintiff went to Memorial Hospital in Belleville, where he was treated and released. Plaintiff was told to consult with his family physician. One or two days later, plaintiff went to his family doctor, Dr. Efren Naguit, who prescribed muscle relaxers, pain pills, and physical therapy at the hospital. Dr. Naguit treated plaintiff until the fall of 1980 when he sought other treatment because, according to plaintiff, he was not satisfied with the treatment by Dr. Naguit.

In 1981, plaintiff consulted with several other doctors concerning his back injury. Plaintiff testified he had been treated by Dr. Schultz in December 1981 and continued to seek treatment with Dr. Schultz through the date of trial. Plaintiff was also treated by Dr. Herbert Dexheimer from 1981 through trial. Plaintiff found the treatment of both Drs. Schultz and Dexheimer to be of little help in relieving back pain. As part of Dr. Schultz’ treatment, plaintiff went through a series of epidural blocks in 1984. Plaintiff also sought treatment with Dr. Arabinda Das from approximately August 1981 through the time of trial. Plaintiff did not tell Dr. Das that he had been a patient of Dr. Naguit. Plaintiff did not tell Dr. Das about Dr. Naguit because he had been referred to Dr. Das by Dr. Dexheimer. Dr. Das performed acupuncture on plaintiff. Additionally, plaintiff was hospitalized in December 1981 by Dr. Das. Dr. Dexheimer also consulted on plaintiff’s hospitalization. Plaintiff testified that the acupuncture relieved pain only temporarily. As soon as plaintiff went out in the cold air or lifted something, he was in as much pain as prior to the acupuncture treatment. Plaintiff found his back pain to be more intense during cold weather.

Plaintiff testified that he purchased all medications prescribed for him by his treating doctors from 1980 through the trial. Plaintiff believes his back condition is deteriorating. He can no longer work as a carpenter because of the pain he experiences.

There are many ambiguities in plaintiff’s testimony concerning his employment from the years 1977 through trial. The following is what could be adduced by this court concerning plaintiff’s employment history. Plaintiff is now employed as a laborer. Over defendant’s objection, plaintiff was allowed to testify that the only reason he is working is because he has no other way to support himself and his family. Plaintiff’s friend is a business agent and he put plaintiff on a job that does not require as much physical labor. Before plaintiff was a laborer, he worked for St. Clair County from August 1984 through January 1986 as an instructor for the weatherization program. In either 1977 or 1979, defendant started a fencing business in which he constructed both chain link and wooden fences. This business terminated in August 1983, because plaintiffs back hurt and he was unable to do the construction work.

On cross-examination, plaintiff testified that he filed a lawsuit against Chevron Chemical and K mart as a result of exposure to toxic fumes in February 1982. The case is pending in Federal court. In the Chevron suit, plaintiff seeks past and future earnings which he has lost and will lose by virtue of his exposure to toxic chemicals.

Earl Hartman was the next to testify for plaintiff. Hartman investigated the auto accident in which plaintiff was involved. Hartman did his investigation in March 1980, starting with a license plate number (444 023B) which had been furnished by plaintiff. Hartman located the pickup truck at defendant’s residence. Both the license plate number and the description of the truck furnished by plaintiff matched defendant’s vehicle. Defendant admitted to Hartman that it was his truck. Using his report to refresh his memory, Hartman stated that he could not find any real damage to defendant’s truck.

Next, plaintiff’s wife, Barbara Scheibel, testified that when plaintiff arrived home after the collision, he had pain in his back and neck which kept getting worse. The first few months after the collision, he was in a lot of pain. Plaintiff could not sit for long periods of time, nor could he sleep through the entire night. The treatments plaintiff received would give him temporary relief, but the pain would then crop up as severe as ever. The epidural blocks he had received seemed to reduce the pain for a few weeks at a time. Plaintiff’s wife testified that plaintiff had become difficult to live with after the collision. Generally, plaintiff comes home from work, takes a shower and does not want to eat dinner. He then goes to bed early, and it takes him a long time to get moving in the morning because of the pain. Additionally, plaintiff and his wife do not often go out because of plaintiff’s pain.

The evidentiary deposition of Dr. Efren Naguit was read into evidence. Dr. Naguit is plaintiff’s family physician. Dr. Naguit examined and treated plaintiff on February 26, 1980, for neck and low back pain. At that time, plaintiff told Dr. Naguit that he had been in a car accident on February 20, 1980, a rear-end hit and run. Dr. Naguit’s diagnosis was that plaintiff suffered from acute low back strain as a result of the injury he suffered from the February 20, 1980, car accident. At this time, Dr. Naguit also reviewed the X rays taken at Memorial Hospital on February 20, 1980. The X rays of plaintiff’s neck were normal in Naguit’s opinion. The X rays of the lower back were normal, except for degenerative changes (arthritis) which, according to Dr. Naguit, had to exist before February 20, 1980. On plaintiff’s first visit to Dr. Naguit, treatment consisted of a muscle relaxant shot and a prescription for muscle relaxant pills to be taken four times per day. In addition, Dr. Naguit told plaintiff to go to physical therapy for his lumbar spine three times per week. Dr. Naguit believed plaintiff could work at this time.

On March 4, 1980, Dr. Naguit again saw plaintiff. Plaintiff complained of even worse pain. Dr. Naguit’s examination of plaintiff on this date showed acute low back strain as well as cervical strain. Dr. Naguit believed that plaintiff’s back and neck pain were a result of the car accident on February 20, 1980. Dr. Naguit’s treatment on this date was the same treatment he administered on February 20, 1980. Plaintiff continued to seek treatment with Dr. Naguit during March and April 1980.

On May 6, 1980, Dr. Naguit found plaintiff’s acute low back strain much improved. Plaintiff told Dr. Naguit he was much better and wanted to go back to work. Plaintiff was told by Dr. Naguit to discontinue physical therapy on a regular basis and go to physical therapy only when plaintiff’s back began to hurt. No muscle relaxant shot was administered, but Dr. Naguit told plaintiff to continue to take his muscle relaxant pills four times per day and return in two weeks.

On May 17, 1980, Dr. Naguit examined plaintiff and found him to have a full range of motion over the lumbar spine area. According to Dr. Naguit, plaintiff told him his back felt great. It was Dr. Naguit’s opinion that plaintiff had completely recovered from the February 20, 1980, car accident and that plaintiff could return to work on May 19, 1980.

Dr. Arabinda Das was the next witness to testify for plaintiff. Dr. Das testified that he saw plaintiff for the first time on August 10, 1981. Plaintiff was complaining of back and neck pain and said he had such pain since February 1980, when he was rear-ended in an auto accident. Dr. Das gave plaintiff a physical examination in which he found plaintiff’s neck movements to be normal but tenderness on the muscles at the back of plaintiff’s neck as well as tenderness of the dorsal and lumbar spine. Dr. Das’ diagnosis was “back sprain, post traumatic, severe cervical sprain and neck arm syndrome. Also has neck headache syndrome *** And dorsal sprain. Lumbar sprain. With right sciatica.” Dr. Das’ opinion was that plaintiff’s whole back was sprained. As treatment, Dr. Das performed acupuncture, prescribed Darvon, Valium, and arnica, an herbal medicine. Dr. Das knew that plaintiff was doing construction work and placed no limitation on plaintiff.

Plaintiff continued the same treatment with Dr. Das until April 13, 1982, when Dr. Das prescribed XanaX. The XanaX was soon stopped because it did not help. Plaintiff would feel better on some days and worse on others. On July 20, 1982, plaintiff was complaining of problems with his back as severe as ever and pain from the top of his neck to his lower back. At this time, Dr. Das discontinued the Darvon prescription and substituted Tylox. On August 16, 1982, Dr. Das began prescribing Empirin Compound Number 4, four times per day. On September 13, 1982, plaintiff complained to Dr. Das that his hands were “sleeping.” Additionally, plaintiff complained that the upper part of his body (trunk) and legs were hurting. Plaintiff demanded acupuncture on September 13,1982.

The same type of treatment continued through the fall of 1982. On November 8, 1982, plaintiff complained to Dr. Das that the pain all over his back and his right arm was getting ten times worse. Plaintiff told Dr. Das that the cold air in the winter made his condition worse. On December 16, 1982, plaintiff complained of involuntary movement of his muscles for which Dr. Das prescribed 50 milligrams of Talwin, of which 30 milligrams were administered intramuscularly. From December 17, 1982, through December 22, 1982, plaintiff was hospitalized for back pain by Dr. Das. Dr. Dexheimer consulted with Dr. Das on the admission of plaintiff. Dr. Das called in two doctors to examine plaintiff: Dr. Edward Rose, a rheumatologist; and Dr. Ronald Welch, a neurologist. Dr. Rose submitted a report of his findings to Dr. Das. Dr. Rose believed that plaintiff suffered from a limitation of the spinal flexion. Normally, the spinal column is flexed to 180° while one is bending down, but plaintiff could only flex up to 45°. Dr. Rose prescribed phenylbutazone to reduce pain and Flexaril to decrease muscle spasms. After plaintiff’s release from the hospital, Dr. Das next saw plaintiff on December 28, 1982. Plaintiff stated that the pain had been reduced because of the prescribed muscle relaxers and pain medication. However, by January 13, 1983, plaintiff was no longer receiving phenylbutazone because it is a toxic medicine whose side effects are both common and dangerous. Throughout January and February 1983, plaintiff complained of back pain. In Dr. Das’ opinion, plaintiff’s complaints are consistent with plaintiff’s injury from the February 20, 1980, car accident. After February 1983, Dr. Das saw plaintiff only sporadically. Dr. Das did not see plaintiff at all during 1984. At his 1985 visits to Dr. Das, plaintiff’s complaints were the same, and Dr. Das found no change in plaintiff’s condition. Dr. Das last saw plaintiff on May 24, 1986, and told him to return in 25 days, but plaintiff had not returned through the time of trial. Dr. Das’ total charges for treatment for plaintiff’s back injury were $2,130.

Despite treatment, plaintiff’s condition had not improved according to Dr. Das. In Dr. Das’ opinion, plaintiff’s prognosis remains poor.

During cross-examination, Dr. Das agreed that his specialty is psychiatry, for which he is board-certified. Dr. Das also admitted that he was not aware that Dr. Naguit had treated plaintiff immediately after the February 20, 1980, accident.

In 1982, according to Dr. Das, plaintiff fell and sustained a fractured ninth rib on the left side. During January 1982, plaintiff did not complain of back pain, but rather pain related to his broken rib. In February 1982, Dr. Das treated plaintiff for inhalation of toxic fumes. Dr. Das agreed that plaintiff’s treatment from February 1982, through June 1982, was for exposure to toxic fumes rather than back problems. Dr. Das agreed that the toxic fumes could contribute to some of plaintiff’s complaints of a muscular skeletal nature.

At the close of plaintiff’s case, defendant moved for a directed verdict which the trial court denied. Defendant then took the stand.

Defendant testified that he had never been on Shiloh Road and was not there on February 20, 1980, throwing out trash. Defendant testified that he had seen a truck in Collinsville that looked similar to his around February 1980. On cross-examination, defendant could not produce the license plate number on this other truck. Defendant first heard of the alleged accident in which plaintiff was involved when Mr. Hartman came out to look at defendant’s truck.

Patricia Gumm, mother of defendant, was the next witness. She testified that her son lived with her in February 1980. On February 20, 1980, defendant got home from work between 6 and 6:30 a.m. Defendant’s mother took defendant’s truck at about 8:30 a.m. to return a Roto-Rooter. After she returned the Roto-Rooter, she stopped at various other locations. On direct examination, she testified she returned home at 11 a.m. to deliver groceries. She left again and did not return until noon. She testified that she left again in defendant’s truck and did not return until 1:30 p.m. On cross-examination, however, defendant’s mother testified that she returned home at noon as her son’s fiancee arrived for lunch. On cross-examination, defendant’s mother admitted she did not drive the truck after noon. However, she said her son’s keys remained in her possession until 2:30 p.m. when she left for work. At that time, she took her own automobile to work. Mrs. Gumm testified that to her knowledge there was not a “Ford” emblem in large letters on the back of her son’s truck. She did discuss orange-colored designs on the sides of the truck.

Defendant’s wife, his fiancee on February 20, 1980, Valerie Groeteka, was the next witness to testify. She testified that during February 1980, she would go over on her lunch hour to visit defendant. She worked Tuesday through Saturday and her lunches were from noon to 1 p.m. She generally stayed at defendant’s home approximately one-half hour. Valerie Groeteka agreed that she sometimes went to lunch from 11 a.m. until noon; however, she stated that that was only on rare occasions. From Mrs. Groeteka’s testimony, it is clear she does not remember exactly what she did on February 20, 1980. She was testifying as to her normal habits during the month of February 1980.

Finally, Michele Moore, a physical therapist at Memorial Hospital, was unavailable to testify, but her deposition was read into evidence. Michele Moore saw plaintiff on February 11, 1981. At that time, plaintiff complained that there was a tightness and pulling sensation in the muscles in his lower back. Plaintiff told Michele Moore that this pain started after he worked on some frozen water pipes in December 1980. Plaintiff also told Ms. Moore that he had no pain at all throughout the summer. In addition, plaintiff complained of pain in his right leg, but stated that it was a long-standing problem, as a plastic artery had been inserted in his right leg in 1979.

On cross-examination, Ms. Moore agreed that plaintiff had not told her that he physically twisted his back while working on the frozen pipes, but rather after he did this work, he felt a pulling sensation. Ms. Moore agreed that she was not sure how plaintiff injured his back. Plaintiff did not tell her that he had been injured in an automobile accident.

Defendant’s first issue on appeal is whether the trial court erred in permitting plaintiff to testify that in his opinion the truck which struck him had sufficient distance in which to stop before striking the rear of plaintiff’s vehicle. Defendant specifically argues that the question asked of plaintiff called for a conclusory answer on the ultimate issue of negligence, and, further, there was no reason why plaintiff could not adequately communicate to the jury the facts upon which his opinion was based. Therefore, according to defendant, the opinion testimony expressed by plaintiff was superfluous and its admission constituted reversible error.

The general rule is that to be admissible, opinion testimony must be of assistance to the trier of fact. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 483 N.E.2d 524.) Illinois courts rely on Rule 701 of the Federal Rules of Evidence in considering the admissibility of opinion testimony. Rule 701 provides:

“If the witness is not testifying as an expert, witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of witness’ testimony or the determination of a fact in issue.” Fed. R. Evid. 701.

During direct examination of plaintiff, the following colloquy ensued:

“Q. Between the point in time when you saw the individuals throwing the garbage out of the truck and the time you turned left with the other truck onto Shiloh Road did you ever lose sight of the truck?
A. No, I didn’t.
Q. What happened next, Mr. Scheibel, after the — Mr. Groeteka’s truck turned left and you turned left?
A. As I pulled alongside him I turned my flashers on. I pulled up alongside. I honked my horn. When the guy looked at me from the truck I motioned for him to pull over, that I wanted to talk to him. We were only going at a slow speed, around at that point maybe ten miles an hour. They were starting from a dead stop, and I was just rolling into the curb. I pulled ahead of them until I could see their truck in the rear-view mirror, pulled over a little bit, and as I started easing up, you know, off the gas, I turned to look over my shoulder out the rear window, and I was shocked to see the truck was already right behind me and had collided with me. After this it just, you know, shoved me forward, and he went down into the ditch, up around me and kept on going into Shiloh, and I was just kind of stunned. I got out and looked at the back of my truck, and there wasn’t any damage. There was — I have a real heavy bumper on the back of my truck, and there was a brush guard on the front of this truck is what — when I turned around that’s what I — all I could see was this brush guard coming at me, and it hit the bumper and the only damage I could find was a cracked windshield.
Q. Damage to your truck?
A. Right.
Q. Just to clarify a point, Mr. Scheibel, when you made the left turn at the same time the other truck made the left turn, in which lane was either truck or which side of the truck were you on?
A. I was on the left side of the other truck. At that point in the road it’s very wide. It’s, I would say, over a hundred feet wide where it comes out to meet Highway 50 and merge with it.
Q. And then at what point in time did you look in the rear-view mirror to see where the other truck was?
A. Just before I pulled back in and started, you know.
Q. Do you have an estimate as to how far behind you the other truck was at the time you looked in the rearview mirror?
A. It was two or three car lengths.
Q. Do you have an estimate as to how fast the other truck . may have been going at this time?
A. Oh, it could have been going — it had to be less than 20.
Q. In relationship to the road, side, middle and so forth, where was your truck at the time of the impact, the collision with the other truck?
A. It was sitting in the right-hand lane where I had pulled back in to turn around. I thought they were going to stop because I had — you know, they looked at me when I pointed to pull over, and when I got up far enough I could see them in the rearview mirror I thought they were, you know, going to pull over and stop.
Q. In your opinion, Mr. Scheibel, would the driver of that truck have had opportunity to stop his vehicle as you pulled over to the side of the road?
MR. DUCEY [counsel for defendant]: Show an objection. It calls for an opinion which this witness is not qualified to give and cannot give.
THE COURT: That will be overruled. He can answer. You may answer, Mr. Scheibel.
THE WITNESS: Well, yes, he could have definitely stopped.”

Taken in its context, plaintiff’s statement that defendant could have stopped his vehicle is distinguishable from Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 483 N.E.2d 524, cited by defendant. In Freeding-Skokie, plaintiff, truck owner and driver, brought suit against defendant seeking to recover damages to plaintiff’s truck allegedly caused by defendant’s negligence. As defendant was making a left turn from the westbound lane, her car was struck by plaintiff’s truck, which was headed eastbound. The following direct examination of the plaintiff took place:

“ ‘Q. [by plaintiff’s counsel] Jim [James Harris], in your, opinion, is there any way you could have avoided this accident?
MR. SMITH [defense counsel]: Your Honor, I will object to that. That’s a matter for the jury to decide.
THE COURT: Overruled. He can answer that question.
A. No, Sir.’
During direct examination of an occurrence witness, Thomas McCarty, the following exchange occurred:
‘Q. [by plaintiffs’ counsel] When that truck, when the car turned in front of the truck, did you have the impression that the truck was so close that the car should never have turned?
MR. SMITH: Your Honor, that’s a leading question. I’ll object to it.
THE COURT: As to the leading nature of it, I’ll sustain.
Q. What, if any, impression did you have with respect to that, sir?
A. My impression was that the driver of the car did not see the truck and turned in front of the truck.
Q. Why do you say that?
A. Just, one would not have made that turn had they seen the truck coming from that distance.
Q. From what you say, sir, as you’re sitting there, coming up behind that accident and you see the car turn in front of the truck, was there anything that you saw there, any way that the truck could have avoided that accident, sir?
MR. SMITH: Your Honor, I’ll object to that. That’s the ultimate issue in the case. That’s for the jury to decide.
THE COURT: He doesn’t have to put his experience in life on the shelf either. Overruled.
Q. I guess you answered that, right, sir? You said “no?”
A. I said no.’ ” (108 Ill. 2d at 219-20, 483 N.E.2d at 525.)

In Freeding-Skokie, our supreme court held that the opinion testimony of lay witnesses that the collision between the automobile and the truck could not have been avoided was superfluous and its admission constituted reversible error. Likewise, in Strasma v. Rager (1986), 145 Ill. App. 3d 826, 495 N.E.2d 1343, another case cited by defendant, the court held that defendant’s answer was on the ultimate issue of negligence and highly prejudicial.

In the instant case, plaintiff went to great lengths to convey the facts which he perceived prior to his statement that the driver of the other car could have stopped. In view of the context, the trial judge’s ruling was within an acceptable range of discretion.

Defendant’s second issue on appeal is whether the trial court erred when it admitted plaintiff’s exhibits 4 and 6 through 13. Plaintiff’s exhibit number 4 was a hospital bill from Memorial Hospital in Belleville which indicated plaintiff was admitted by Dr. Das on December 17, 1982. Plaintiff’s exhibits numbered 6 through 13 were copies of bills for prescription medications dated from August 10, 1981, to 1986. Defendant argues that in admitting these exhibits, the trial court allowed the jury to consider evidence pertaining to plaintiff’s condition and/or treatment which was not related to the February 20, 1980, accident, and which, therefore, lacked any causal connection to the accident and plaintiff’s injuries sustained as a result of said accident. According to defendant, the jury was ultimately allowed to compensate plaintiff for expenses which were totally unrelated to the auto accident of February 20, 1980. Plaintiff replies that the evidence clearly shows a causal connection between both the hospital bill, dated December 17,1982, and the prescription bills.

Both parties agree that the law in Illinois is that unless the nature and extent of damages can be proven with reasonable certainty, the award cannot be sustained. (DMI, Inc. v. Country Mutual Insurance Co. (1980), 82 Ill. App. 3d 113, 402 N.E.2d 805.) There must also be a causal connection between the injury sustained and the event in question that is proven with a degree of probability that amounts to reasonable certainty. (Manion v. Brant Oil Co. (1967), 85 Ill. App. 2d 129, 229 N.E.2d 171.) As to plaintiff’s exhibit number 4, the record indicates that Dr. Das. hospitalized plaintiff for back pain on December 17, 1982, and plaintiff remained in the hospital through December 22, 1982. Between the date of the accident and the time of plaintiff’s hospitalization by Dr. Das, plaintiff had inhaled toxic fumes. While Dr. Das did agree that the toxic fumes could or might contribute to some of the complaints of a muscular skeletal nature made by plaintiff, Dr. Das testified that he treated plaintiff for inhalation of toxic fumes only until June 8,1982.

We believe plaintiff did establish a causal connection between his hospital stay and the injuries he sustained in the 1980 auto accident by Dr. Das’ testimony. Defendant did not establish any causal connection between plaintiff’s hospital stay and the inhalation of toxic fumes. While Dr. Naguit testified that he thought plaintiff’s back injury was healed by May 17, 1980, he did tell plaintiff to seek treatment if his back began to bother him. All doctors testified that the nature of a back injury is such that painful symptoms can reoccur.

As to plaintiff’s exhibits 6 through 13, plaintiff testified that he had bought all prescriptions which had been prescribed for him by his doctors for his back injuries. Dr. Naguit testified that he had prescribed various drugs to alleviate plaintiff’s pain as well as relax plaintiff’s muscles from February 26 through May 17, 1980. Further, he did tell plaintiff to seek treatment if his back began to bother him again. Dr. Das testified that he prescribed numerous and various medications between 1981 and 1986. This, too, we believe, was enough to make a causal connection between the accident in question and the prescriptions. The opinion of Dr. Das that plaintiff’s back injuries were caused as a result of the 1980 auto accident was a proper method of proving causal connection.

The instant case is similar to Turner v. City of Chicago (1968), 95 Ill. App. 2d 38, 238 N.E.2d 100, cited by plaintiff. In Turner, a prima facie showing of damages was made by the plaintiff by his testifying to pain and suffering in connection with his fall on a city sidewalk, to medical treatment he received, and to lost wages. The Turner court held that once the plaintiff made a prima facie showing of damages, the city had the burden of going forward with evidence to show that the plaintiff was not injured on its sidewalk. Likewise, in the instant case, once plaintiff testified to his pain and suffering, medical treatment sought, and lost wages, it was up to defendant to prove that such injuries were not a result of the 1980 auto accident.

Defendant cites Chapman v. Powers (1975), 30 Ill. App. 3d 44, 331 N.E.2d 593, in which a hospital bill was improperly admitted into evidence since there was no medical testimony to establish that the charge was reasonable or that the entire bill was related to the injury claimed; in Chapman, however, the court found that this was not prejudicial error. The instant case is also distinguishable from Manion v. Brant Oil Co. (1967), 85 Ill. App. 2d 129, 229 N.E.2d 171, also cited by defendant. In Manion, a verdict in favor of the executrix of the decedent was not sustainable where an autopsy showed death resulted from degenerative diseases, none of which could be directly attributed to the traumatic injuries sustained by the decedent in an auto accident. In the case at bar, Dr. Das specifically stated that it was his opinion that plaintiff’s complaints were consistent with plaintiff’s injury from the February 20, 1980, auto accident.

Between plaintiff’s testimony, Dr. Naguit’s testimony, and Dr. Das’ testimony, we cannot say that there was not a causal connection between the hospital bill and the prescription bills to support the jury’s verdict.

The third issue to consider is whether the trial court erred when it gave plaintiff’s jury instruction number 14, which instructed the jury as to five elements of damages. Defendant argues that the instruction was improper because the elements of damages set forth in the instruction were not supported by the evidence. Plaintiff replies that the five itemized elements of damages contained in plaintiff’s instruction number 14 were proven with reasonable certainty.

It is well settled that the nature and extent of damages must be proven within reasonable certainty to sustain the award. (DMI, Inc. v. Country Mutual Insurance Co. (1980), 82 Ill. App. 3d 113, 402 N.E.2d 805.) Further, it is reversible error to instruct the jury on issues upon which no evidence has been produced. Connolly v. Melroy (1978), 63 Ill. App. 3d 850, 380 N.E.2d 863.

The first element instructed the jury to compensate plaintiff for aggravation of any preexisting ailment or condition. Dr. Naguit testified under cross-examination that the degenerative changes found in plaintiff preexisted the February 20, 1980, accident. Further, plaintiff, under cross-examination, testified that Dr. Das had told him he had arthritis in his back prior to the accident and the “force of the collision broke it loose.” Otherwise, the arthritic condition would have remained dormant. Defendant’s own cross-examination of these two witnesses presented sufficient evidence to support the jury’s award of damages for aggravation of a preexisting condition.

The second element instructed the jury to compensate for disability resulting from the injury. Dr. Naguit testified that plaintiff was injured as a result of the February 20, 1980, auto accident, although he also testified that he believed plaintiff had completely recovered by May 17, 1980. Dr. Naguit clearly restricted plaintiff’s movements after the accident as Dr. Naguit testified he told plaintiff he could return to work on May 19, 1980. Dr. Das testified that plaintiff’s prognosis is poor, while plaintiff himself testified that he believed his back was deteriorating. Further, plaintiff and plaintiff’s wife testified plaintiff has continuing pain and difficulty maneuvering which have impinged upon his lifestyle. We find this to be sufficient evidence to instruct the jury as to disability.

In addition to defendant’s argument that the first two elements were not supported by the evidence, defendant argues that the aggravation and disability elements are duplicative and allowed a double recovery. Defendant cites no law to support his proposition that the elements of aggravation of any preexisting condition and the disability resulting from the injury are duplicative elements of damages. Supreme Court Rule 341(eX7) provides that the appellant shall include in the argument portion of his brief the citations and authorities relied on by appellant in advancing said argument. (107 Ill. 2d R. 341(e)(7).) This provision is simply an application of the general principle that the court will not research and argue a case for an appellant. Where there is failure to cite authorities in connection with an argument, the argument may be rejected for that reason. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267.) In this instance, however, common sense alone dictates that the two elements, aggravation and disability, are mutually exclusive.

The third element instructed the jury to compensate plaintiff for pain and suffering experienced and reasonably certain to be experienced in the future as the result of the injuries. Again, the testimony of plaintiff’s treating physicians concerning plaintiff’s injury and treatment, Dr. Das’ poor prognosis, and plaintiff’s wife’s testimony as to plaintiff’s pain and suffering are sufficient to allow the inclusion of this element in the instruction.

The fourth element instructed the jury to compensate plaintiff for the reasonable expense of necessary medical care, treatment and services received and the present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future. The evidence of plaintiff’s existing medical expenses came from bills from Memorial Hospital incurred the day after the accident, bills for physical therapy prescribed by Dr. Naguit, bills from Memorial Hospital for plaintiff’s 1982 admission, and bills for doctors’ care as well as bills for prescriptions. While there was no medical opinion as to the amount of expenses plaintiff would require for future medical treatment, Dr. Das did testify that plaintiff’s prognosis is poor. Further, plaintiff testified that his back condition is deteriorating. Given the evidence concerning the nature of plaintiff’s disability, the jury could reasonably infer that future medical expenses would be incurred. Levin v. Welsh Brothers Motor Service, Inc. (1987), 164 Ill. App. 3d 640, 518 N.E.2d 205.

The fifth and final element instructed the jury to compensate plaintiff for the value of earnings and profits lost and the present cash value of earnings reasonably certain to be lost in the future. Plaintiff’s tax returns for the years 1979 through 1983 were introduced to prove lost income. Further, plaintiff testified that after the accident in question he was forced to scale down his fence business to the point of ultimate sale because he was no longer able to do the physical labor required of him by such a business.

In summary, we find there was sufficient evidence presented to instruct the jury as to all five elements of damages. Likewise, there was sufficient evidence to support a recovery on each element. It is the jury’s function to weigh contradictory evidence, to judge the credibility of the witnesses, and to draw ultimate conclusion as to the facts, and the jury’s conclusion should not be set aside merely because different conclusions could be drawn from the evidence. Finley v. New York Central R.R. Co. (1960), 19 Ill. 2d 428, 167 N.E.2d 212.

The fourth issue raised by defendant is whether the trial court erred when it refused to direct a verdict on behalf of defendant and against plaintiff at the close of plaintiff’s case and at the close of all the evidence. Defendant argues that plaintiff’s case against him is based solely on the contention that defendant was operating the vehicle which struck plaintiff, although there is no evidence to even establish that defendant’s vehicle was the same vehicle involved in the accident. Defendant argues that there are “glaring discrepancies” in plaintiff’s description of the vehicle involved in the accident and the actual characteristics of defendant’s vehicle. Further, assuming, arguendo, that defendant’s vehicle was involved in the accident with plaintiff on February 20, 1980, defendant is still entitled to a directed verdict, according to defendant, because plaintiff did not prove defendant was the driver of the truck. According to defendant, if it is proven defendant’s vehicle was the same vehicle involved in the accident, the presumption would arise that defendant is the driver. However, defendant rebutted the presumption by testimony that he was not operating his vehicle at the time of the accident. The burden of proving defendant was the driver still remained with plaintiff, according to defendant. Plaintiff presented no evidence to support his allegation that defendant was the driver; therefore, plaintiff failed to meet his burden of proof and defendant was entitled to a directed verdict.

The general rule in automobile injury cases is that proof of ownership raises a presumption that the machine was under defendant’s control at the time of the accident, and the burden of rebutting this inference then passes to defendant. (Robinson v. Workman (1956), 9 Ill. 2d 420, 427, 137 N.E.2d 804, 808; McElroy v. Force (1968), 38 Ill. 2d 528, 532, 232 N.E.2d 708, 710.) Illinois has generally followed the prevailing view that a presumption ceases to operate in the face of contrary evidence. Where there is absence of evidence to the contrary, however, the prima facie case created under a rebuttable presumption will support a finding. (Diederich v. Walters (1976), 65 Ill. 2d 95, 102, 357 N.E.2d 1128, 1131; McElroy v. Force (1968), 38 Ill. 2d at 533, 232 N.E.2d at 711.) In Diederich v. Walters, Dean Wigmore’s view on this issue was adopted. Wigmore states:

“ ‘[T]he peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule ***.’ (9 Wigmore, Evidence sec. 2491, at 289 (3d ed. 1940) [now Chadbourn rev. 1981 at 305].)” (Emphasis in original.) (65 Ill. 2d at 101, 357 N.E.2d at 1131.)

Clearly, defendant must offer evidence sufficient to satisfy the trial judge’s requirement that some evidence has been presented to overcome the presumption.

In the instant case, we believe there was sufficient evidence to establish that defendant’s truck was in the collision with plaintiff’s vehicle. Not only did plaintiff give an accurate description of defendant’s vehicle, but the license number provided by plaintiff matched defendant’s vehicle. The presumption that defendant was involved in the accident was established. Defendant testified that he had never been on Shiloh Road and was not there on February 20, 1980. Defendant further testified that in February 1980, he had seen a truck in the Collinsville area that was similar to his, but defendant could not produce a license plate number. Defendant’s mother, Patricia Gumm, testified that she had used defendant’s truck on February 20, 1980, to return a Roto-Rooter. She produced a copy of the receipt dated February 20, 1980. She further testified that she was in possession of defendant’s truck until 1:30 p.m.; however, on cross-examination, defendant’s mother admitted she did not use the truck after noon. Defendant’s wife, fiancee at the time of the incident, testified to her normal habits during the month of February 1980. She testified that she normally went to defendant’s house from approximately 12:15 to 12:45 p.m. to eat lunch with defendant. This testimony favoring defendant was sufficient to satisfy the “some evidence” requirement and put this matter in the jury’s hands for resolution. On the evidence recited above, the jury could reasonably infer that defendant’s truck was involved in the collision.

In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, the supreme court stated the following standard to determine whether a trial court should enter a directed verdict.

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d at 510, 229 N.E.2d at 513-14.)

In applying the Pedrick standard to the facts presented here, we find that the trial court did not err when finding that all the evidence, when viewed in the light most favorable to plaintiff, did not so overwhelmingly favor defendant that no contrary verdict could ever stand.

As to defendant’s argument regarding an agency relationship, we need not address this issue, as plaintiff did not contend anyone other than defendant was driving the vehicle involved in the collision with plaintiff.

Defendant’s fifth issue on appeal is whether the trial court erred when it permitted plaintiff and his wife to testify regarding their financial status, introduced into evidence the testimony that plaintiff had to return to work because of lack of income and refused to grant defendant’s motion for a mistrial. Defendant argues that references to plaintiff’s familial and financial status were made by plaintiff, plaintiff’s wife, and plaintiff’s counsel at various times during the trial and such references were so harmful and prejudicial as to have resulted in an improper and excessive verdict for plaintiff. Defendant argues that said references constituted reversible error.

The record reveals that during plaintiff’s opening statement, plaintiff’s counsel made a statement that plaintiff was working only because of his poor financial condition. Defendant moved for a mistrial based on plaintiff’s counsel’s remarks. Defendant’s motion was denied. Next, plaintiff was permitted to testify over defendant’s objection that he was working at the time of the trial because he had no other way of supporting his wife and family. The following remarks were made:

“Q. [by plaintiff’s attorney]: But yet you are employed?
A. Yes, I am, against the doctor’s—
MR. DUCEY: Show an objection.
THE COURT: That will be sustained.
Q. [by plaintiff’s attorney] You are presently employ[ed], however?
A. Yes, I am.
Q. Mr. Scheibel, if you feel that you are unable physically to perform your normal livelihood, why is it that you, in fact, are working?
Q. My-
MR. DUCEY: Show an objection. This is irrelevant.
THE COURT: It’s overruled. You may answer.
A. I have no other way of supporting myself and my family.”

Plaintiff’s wife also gave unsolicited testimony that plaintiff was working because of financial necessity, but defendant’s objection was sustained. Plaintiff’s wife also testified without objection as to how plaintiff’s injuries have affected plaintiff’s family.

References to the financial status of the parties may constitute reversible error. (Lake County Forest Preserve District v. Continental Illinois National Bank & Trust Co. (1976), 35 Ill. App. 3d 942, 343 N.E.2d 6.) However, the language complained of must not only reasonably be understood to refer to the financial status of one of the parties, but it must also be shown that it was so harmful and prejudicial as to have resulted in the return of an improper verdict. McMahon v. Richard Gorazd, Inc. (1985), 135 Ill. App. 3d 211, 481 N.E.2d 787.

In the instant case, the trial court correctly sustained defendant’s objection to plaintiff’s wife’s unsolicited comments about plaintiff’s financial status, and we find no error. Plaintiff’s counsel’s remarks during opening statements were in error; however, we find these statements were not so harmful and prejudicial as to constitute reversible error. Likewise, plaintiff’s statements about his financial and familial status were not so prejudicial as to constitute reversible error. Many people, including those who are not hurt in an accident, would rather not be working, but are made to do so to support their families. Further, the opening statement and the questioning complained of does not constitute a significant portion of the evidence taken at trial. (McMahon, 135 Ill. App. 3d 211, 481 N.E.2d 787.) Additionally, this record contains more than sufficient information to support the jury’s verdict. For the foregoing reasons, and in light of the jury’s reduction of the award by 50% for plaintiff’s contributory negligence, we are satisfied that the failure of the trial court to sustain defendant’s objections was harmless error.

Defendant’s sixth issue on appeal is whether the trial court erred when it barred defendant from introducing the testimony of Dr. Simon Hornstein and F.J. Accardio. Defendant specifically argues that Dr. Hornstein was an examining physician pursuant to Supreme Court Rule 215 (107 Ill. 2d R. 215). His report was furnished to plaintiff pursuant to Rule 215 on February 6, 1985. Thus, Dr. Hornstein’s examination and findings were well known to all parties prior to trial, and under Rule 215, Dr. Hornstein should have been permitted to testify. Defendant argues that Rule 215, not Rule 220, is the applicable provision in this case because it is the specific rule, while Rule 220 is merely a general rule. Additionally, defendant argues that by complying with Rule 215, defendant in effect complied with Rule 220 in that the information to be provided under Rule 220 is in fact provided when complying with Rule 215. Finally, defendant argues the testimony of an expert witness can only be barred by the trial court if a party fails to comply with a court order setting forth deadlines for disclosure of experts. Defendant argues that the trial court never entered an order regarding the disclosure of experts, so the trial court had no authority to bar Dr. Hornstein’s testimony.

The trial court also barred the testimony of Dr. Hornstein and F.J. Accardio because they had not been disclosed as a witness expected to testify at the time of voir dire of the jury. On September 17, 1986, during voir dire, the court requested both parties to name all witnesses expected to testify at trial. Defendant did not name either Dr. Hornstein or F.J. Accardio. Defendant argues that the trial court had no authority to bar either witness because, according to defendant, there is no law or procedure in Illinois which allows the trial court to do so. Without these two witnesses’ testimony, defendant argues he was denied his right to a fair trial.

The record reveals that on or about August 11, 1986, plaintiff filed and served upon defendant Rule 220 interrogatories requesting the names of any expert witness expected to testify at trial. On August 19, 1986, defendant filed his answers to the Rule 220 interrogatories stating, “[t]his defendant has no expert witnesses at this time which it intends to call at the trial of this case.” Dr. Hornstein did examine plaintiff pursuant to Supreme Court Rule 215, and his report was furnished to plaintiff on February 6,1985.

Supreme Court Rule 220(b)(1) requires the disclosure of an expert witness at the later of either the first pretrial conference or 90 days after the substance of his expert opinion is known to the party who intends to introduce such witness. The rule further provides that failure to disclose an expert as required will result in disqualification of the expert. (107 Ill. 2d R. 220(b)(1).) The trial court may impose sanctions, and the court’s decision should not be interfered with on review absent a clear showing of abuse. Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022; 107 Ill. 2d R. 219.

In the instant case, we can find no order scheduling the date upon which all expert witnesses were to be disclosed. It is clear, however, that defendant did not disclose any experts before trial, and defendant stated on August 19, 1986, only one month before trial, in his answer to plaintiff’s interrogatories that he did not intend to call any expert witnesses. Immediately before trial, during voir dire, the trial judge specifically asked defendant what witnesses he intended to call, and both Dr. Simon Hornstein and F.J. Accardio were absent from defendant’s list. Clearly, defendant did not act in good faith to identify expert witnesses, as required by Supreme Court Rule 220. Defendant’s offer of proof on F.J. Accardio indicates he would have testified as an expert. If Mr. Accardio had been allowed to testify, defendant’s attorney said he would have stated “that he examined the automobile in May of 1980, or truck in 1980, and at that time there was — he found there was no damage to the truck and there had never been any repairs made to the truck. The front of the truck, which would have been an area involved in this accident.”

The application of the sanction to disqualify an expert is within the sound discretion of the trial court. Romano v. Bittner (1987), 157 Ill. App. 3d 15, 510 N.E.2d 924; Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022; Appelgren v. Walsh (1985), 136 Ill. App. 3d 700, 483 N.E.2d 686.

Defendant cites no authority for his argument that by disclosing Dr. Homstein under Rule 215, he was not required to disclose Dr. Homstein under Rule 220. A comparative reading of both rules clearly indicates their differences in focus and intent. Rule 215 deals with medical examinations, providing the mechanism for the examination to take place and assuring timely disclosure of its results. Rule 220 is a comprehensive plan for pretrial disclosure of experts generally. This court in no way reads these two rules as being mutually exclusive.

In considering a situation wherein the parties know the existence of an expert but that expert has not been disclosed or discovery had under Rule 220, we cite the case of Fischer v. G & S Builders (1986), 147 Ill. App. 3d 168, 497 N.E.2d 1022. In Fischer, the plaintiffs agreed that their “last-minute disclosure” (three days before trial) of an expert violated Supreme Court Rule 220. (147 Ill. App. 3d at 172.) The plaintiffs, however, suggested that the rule is flexible because the defendants knew of the witness’ presence since the witness had inspected the property and the defendants knew of the report. The Fischer court did not agree with the plaintiff’s argument and held that the trial court did not abuse its discretion in refusing to allow the plaintiff’s expert witness to testify.

Additionally, an expert has been disqualified when his opinion was offered in opposition to a motion for summary judgment, even though at the time of the hearing on the motion for summary judgment, the court-ordered discovery cut off was still one month away and the scheduled beginning of the new trial was three months away. James v. Yasunaga (1987), 157 Ill. App. 3d 450, 510 N.E.2d 531.

We believe that the trial court did not abuse its discretion in refusing to allow either Dr. Homstein or F.J. Accardio to testify. The defense attorney did not act in good faith and the trial court administered an appropriate sanction. To rule otherwise would allow defense attorneys to effectively circumvent Rule 215 through Rule 220.

The final issue on appeal is whether the trial court erred when it denied defendant’s motion to dismiss plaintiff’s amended complaint on the basis that plaintiff had assigned all rights and causes of action he may have had to State Farm Insurance Company (State Farm). Defendant argues that because plaintiff entered into a “release and trust agreement” with State Farm, which provided for the assignment of rights of plaintiff to State Farm in consideration for the payment of $5,000, plaintiff assigned his right to any claims for personal injuries arising out of the accident on February 20, 1980, to State Farm. According to defendant, State Farm became the real party in interest. Therefore, the trial court erred when it denied defendant’s motion to dismiss plaintiff’s amended complaint because plaintiff was not a real party in interest, and thus plaintiff lacked standing to sue. Defendant further argues the trial court erred when it denied defendant’s motion to require State Farm to be named as a plaintiff on its claim to recover $5,000 which it paid to plaintiff.

If an insured plaintiff has even a de minimis pecuniary interest in the lawsuit, that interest is sufficient to allow a subrogation action to be maintained in plaintiff’s name. (Radtke v. International Heater Co. (1986), 140 Ill. App. 3d 542, 488 N.E.2d 1352.) Here, suit was brought in plaintiff’s name to recover less than $50,000. The jury returned a verdict of $100,000 reduced by 50% for contributory negligence. Plaintiff had signed a “release and trust agreement” assigning his rights to State Farm in consideration for $5,000. Obviously, plaintiff did not assign all his rights to his personal injury action to State Farm because such an assignment is void as against public policy in Illinois. (Wilcox v. Bierd (1928), 330 Ill. 571, 162 N.E. 170; North Chicago Street R.R. Co. v. Ackley (1897), 171 Ill. 100, 49 N.E. 222.) However, subrogation of bodily injury cases, as opposed to an assignment of such cases, is not prohibited by public policy. Remsen v. Midway Liquors, Inc. (1961), 30 Ill. App. 2d 132, 174 N.E.2d 7.

We find that the “release and trust agreement” between plaintiff and his insurer, State Farm, was a subrogation agreement which operated only to secure the $5,000 paid to plaintiff by State Farm. We find defendant’s argument to be without merit. The trial court was correct to deny defendant’s motion to dismiss and to deny defendant’s motion to require State Farm to be named as a plaintiff.

For the above-stated reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN RANDLE, Defendant-Appellee.
    Fifth District
    No. 5—87—0650
    Opinion filed May 4, 1989.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Russell F. Watters, of Brown, James & Rabbitt, P.C., of Belleville, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is a driving while intoxicated case.

A phlebotomist, a blood technician, took blood from the defendant, Brian Randle, upon the order of a physician.

The results of the analysis were suppressed because a physician was not present when the blood was taken and because the trial court believed the phlebotomist was not trained.

I

We hold that a physician does not have to be present when a trained phlebotomist withdraws blood on a physician’s order for the blood-alcohol test results to be admissible.

Illinois statutory law authorizes blood withdrawal by a person who has been approved by the Department of Public Health. (Ill. Rev. Stat. 1985, ch. 951/2, par. 11 — 501.2(aX2).) The Department of Public Health has approved “a trained phlebotomist acting under the direction of a licensed physician” to withdraw blood. 77 Ill. Adm. Code §510.110(aX2) (1985).

We are called on to decide what is meant by “under the direction of a licensed physician.”

Rules of statutory construction require that words be given their ordinary meaning as derived from common usage, unless a different meaning is intended by the statutory scheme. “Direction,” according to common usage, means “authoritative instruction; order; command.” Black’s Law Dictionary 547 (4th ed. 1951).

The statutory regulatory scheme here in question reveals no intent that “under the direction” mean anything other than what is meant in common usage. “Direction,” therefore, does not mean “in the presence of.”

The physician ordered withdrawal of a sample of defendant’s blood. The phlebotomist received the order. She followed the command. She withdrew blood from the defendant. She withdrew the blood only because of the authoritative instruction, the order, the command of the physician. Therefore, we find she acted under the direction of a licensed physician.

II

The finding of the trial court that the phlebotomist had not been trained is reversed, because it is against the manifest weight of the evidence.

What is sufficient to show that the phlebotomist has been trained?

The phlebotomist testified that she had been trained — although she did not describe the training — and testified that she had worked in hospitals as a phlebotomist for 18 years.

Simply because she did not fully describe the training should not cause us, after the fact, and by judicial fiat, to say she was untrained. The hospital employed her as a phlebotomist. Physicians ordered her to withdraw blood. They had sealed her training with their imprimatur.

Illinois has no formal licensing requirements for becoming a phlebotomist. It does not seem pragmatic, then, for a court to impose a higher standard for phlebotomists than that standard imposed by the health care industry. If hospitals, physicians and other medical people, all who bear heavy responsibility for the lives and health of those in their care, see fit to trust her to follow correct medical procedures, it makes little sense for courts to find her untrained and unqualified. If the law is to have any meaning, any virtue, any utility, it must mirror real life as closely as possible. That is the true spirit of Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.

Lastly, we refuse the State’s request to order this case assigned to a different trial judge. The record reveals no inclination on the part of the trial judge against the State. It reveals a judge doing his job according to his understanding of the law.

The circuit court is reversed and the cause remanded.

Reversed and remanded.

WELCH, P.J., and HARRISON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK F. VOLKMAR, Defendant-Appellant.
    Fifth District
    No. 5—87—0282
    Opinion filed May 8, 1989.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori J. Lanciani, of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul H. Hillis, Jr., State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendant, Frank Volkmar, was convicted of murder in violation of section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(2)). He did not pull the trigger, but he obtained the gun and actively participated in planning the murder.

The victim, suspected of being an informant by defendant and his fellow thugs, was shot in the head two or three times while facedown on the ground.

Several days after the murder, defendant and the others went back to the body and burned it to a crisp.

Defendant was sentenced to 60 years.

We affirm.

Defendant first argues that the trial court erred in denying his lawyer’s motion to withdraw. Scott Wilzbach, defendant’s lawyer, had claimed he had a lawyer-client relationship with State’s witness Keith Kirgan and a social relationship with Kirgan’s parents, and argued that these relationships would make difficult cross-examination of Kirgan.

The circuit court of Marion County denied Wilzbach’s motion and found that: (1) the motion was not timely; (2) Wilzbach was not representing Kirgan in any matter at the time; (3) Wilzbach did not claim that Kurgan’s cross-examination would involve information obtained from him in confidence; and (4) no actual conflict was shown.

The circuit court’s comments were pregnant with implications about timeliness:

“I’m not saying that you’re trying to delay any trial, but I don’t think one week prior to the trial date is the time to make a Motion to Withdraw, particularly based on at least two witnesses who were known from the day you entered the case were going to be called by the State.”

The record supports the trial court.

Wilzbach argued that he had represented Kirgan in the past, but conceded that he did not represent him during this trial. Being a former lawyer of a State’s witness creates no conflict of interest, notwithstanding the possibility of representation in the future. (People v. Miller (1977), 46 Ill. App. 3d 882, 886, 361 N.E.2d 373, 376.) But even more noteworthy, defendant took the witness stand and admitted the truth of Kirgan’s testimony. Therefore, there was no need to attack Kirgan’s believability in cross-examination. In fact, it seems that Wilzbach, himself, did not believe that his cross-examination of Kirgan had been hampered by these relationships because he omitted this issue from his post-trial motion.

Defendant complains that the circuit court erred in admitting statements of coconspirators. Of these statements, some were made before the crime, others after.

We first take up the statements of coconspirators that were made before the murder.

Paul Potts was called by the prosecution in its case in chief. He testified to statements made to him, not by defendant, but by Gary Daubman. Potts testified as follows:

“Q. What kind of conversation did you have with Gary then?
A. I told Gary what I thought about the whole situation and I said, Man, this, it’s fucked up.’ I said, This whole thing is fucked up.’ I said, Why don’t we get the hell out of here.’
Q. What did Gary say?
A. He agreed.
Q. Okay.
A. He says he is having bad feelings about the whole situation. He said it is nothing like Frank said. He said Frank never said anything about going to, meeting some broad on a motel ***. And, and he says I am getting bad vibes on the whole thing ***.”

Put into context, what Potts and Gary Daubman did not like was defendant going to a motel where the victim’s girlfriend had been lured. She had been told that she needed to stay there and have sex in order to help the victim. Potts and Daubman did not like the additional person, the victim’s girlfriend, having knowledge of some of the facts and being able to testify.

Potts’ testimony about what Daubman had told him as set out above is admissible against defendant even though it was made out of his presence because Daubman was a coconspirator and what he said related to the conspiracy. (People v. Meagher (1979), 70 Ill. App. 3d 597, 601, 388 N.E.2d 801, 803.) Potts and Daubman were debating whether to continue in the plot to kill. As soon as Potts had testified to the conversation, he then testified how they became active again in the plot by snorting cocaine with another of the conspirators and looking at guns, one of which was to be the murder weapon. Therefore, the conversation was in furtherance of the conspiracy, because in full context it showed reflections, reluctance, then debate, and then decision to participate nevertheless.

Defendant complains that it was error to admit the testimony of Potts, Thaxton, and Ray Volkmar that they went to defendant’s house, and there, with defendant present, Daubman had told them how he had killed the victim. Also, Thaxton testified that on that same occasion, he saw the gun that he had previously given to defendant and that defendant had asked him if he wanted it back. Defendant further complains that it was error to let Thaxton testify that Daub-man was talking to them about someone he had shot, and defendant then had told Daubman to “shut up.”

This testimony of Potts, Thaxton and Ray Volkmar was admissible. The portions of their testimony wherein they related that defendant had asked Thaxton if he wanted the gun back and had told Daubman to shut up as he talked about having killed someone are admissible as showing guilty knowledge. People v. Johnson (1975), 32 Ill. App. 3d 36, 47, 335 N.E.2d 144, 154.

Defendant next argues that section 115 — 10.1 of the Code of Criminal Procedure of 1963, under which was admitted as substantive evidence a prior inconsistent statement of defendant’s brother, Ray Volkmar, is an unconstitutional infringement on the power of the judiciary to determine the admissibility of evidence. Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1.

This issue was not included in defendant’s post-trial motion.

This issue is waived. See People v. Friesland (1985), 109 Ill. 2d 369, 374-75, 488 N.E.2d 261, 262-63.

Defendant complains that the trial court erred in refusing to admit prior inconsistent statements of State’s witness Potts as substantive evidence.

This issue was not included in defendant’s post-trial motion.

This issue is waived.

Defendant complains that remarks made by the prosecutor in his opening statement constituted an impermissible expression of the prosecutor’s personal belief regarding the veracity of Potts.

Defendant did not object during the trial.

This issue is waived. People v. Skorusa (1973), 55 Ill. 2d 577, 585, 304 N.E.2d 630, 634.

This issue also was not included in defendant’s post-trial motion.

This issue is waived.

Defendant complains that the prosecutor acted improperly by asking defendant if the testimony of other witnesses was wrong or mistaken.

Defendant did not object to this during trial.

This issue is waived. People v. Killebrew (1973), 55 Ill. 2d 337, 341, 303 N.E.2d 377, 380.

This issue also was not included in defendant’s post-trial motion.

This issue is waived.

Defendant complains that he was prejudiced by the prosecutor’s questions during cross-examination concerning a 1980 conviction for auto theft.

Defendant did not object during trial.

This issue is waived. People v. McCrimmon (1967), 37 Ill. 2d 40, 47, 224 N.E.2d 822, 826.

This issue also was not included in defendant’s post-trial motion.

This issue is waived.

Defendant complains that the trial court improperly considered the victim’s impact statement and the testimony of the victim’s father.

Defendant did not object during the sentencing hearing.

This issue is waived. People v. Stufflebean (1979), 73 Ill. App. 3d 801, 804, 392 N.E.2d 414, 417.

Defendant complains that imposition of an extended-term sentence was not justified. A review of the presentence report causes us to believe he is wrong and the circuit court right. People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.

Defendant complains that it is improper for the trial court to consider deterrence as a factor in aggravation.

We play one more riff across this opinion simply to try to teach the tune. Defendant’s claim that deterrence is not a proper aggravating factor in sentencing strikes us as quite discordant. We do not know from which hymnal he sings, but from wherever, neither hymnal nor hymn matches ours. The law is clear. The sentencing statute mandates the circuit court to consider deterrence. This court has upheld that statutory mandate. The reader, defendant included, is directed thus: Read Illinois Revised Statutes, 1985, chapter 38, paragraph 1005 — 5—3.2(a)(7) (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(a)). Then read People v. Griffin (1981), 94 Ill. App. 3d 165, 167, 418 N.E.2d 817, 818; People v. Floyd (1987), 160 Ill. App. 3d 80, 87, 512 N.E.2d 1378, 1384.

The circuit court is affirmed.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


author: PRESIDING JUSTICE WELCH JUSTICE HOWERTON,

text:
    DARRELL MANSFIELD, Plaintiff-Appellee, v. CURTIS-JANSEN, INC., et al., Defendants-Appellants.
    Fifth District
    No. 5—88—0031
    Opinion filed May 11, 1989.

      HOWERTON, J., dissenting.
    D. Jeffrey Ezra, of Johannes & Marron, P.C., of Highland, for appellant Curtis-Jansen, Inc.
    Richard E. Boyle and Rodney M. Sharp, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for other appellant.
    John T. Papa, of Pratt & Callis, P.C., of Granite City, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

On January 26, 1987, plaintiff, Darrell Mansfield, filed in the circuit court of Madison County a four-count complaint sounding in negligence and strict liability for damages to his cattle-raising operation caused by a cattle feed storage silo manufactured by defendant A.O. Smith Harvestore Products, Inc., and sold and serviced by defendant Curtis-Jansen, Inc. Both defendants filed motions to transfer venue to Greene County on forum non conveniens grounds. These motions were denied by the circuit court of Madison County on April 10, 1987. Thereafter, defendant A.O. Smith filed a motion to vacate the order of April 10, and to schedule a hearing on defendants’ motions to transfer venue so as to allow the parties to conduct discovery on the issues of fact raised by the motions. This motion was granted on May 8, 1987, and the parties were granted time in which to conduct discovery on the issues of fact raised by the motions to transfer venue.

The record following discovery reveals the following facts. Plaintiff is a resident of Greene County, and the cattle feed storage silo was constructed, serviced, operated, malfunctioned and remains in Greene County. The damages to plaintiff’s cattle-raising operation were incurred in Greene County.

Defendant A.O. Smith is a foreign corporation with offices in Barrington and De Kalb, Illinois. A.O. Smith does business in Madison County, but has no office there. A.O. Smith keeps no records in Madison County.

Defendant Curtis-Jansen is an Illinois corporation with its principal place of business in Effingham County. It also has an office in Clinton County. It does business in Madison County, but has no office there. Any records pertaining to the silo sold to plaintiff would be located in Curtis-Jansen’s Effingham County office or its Clinton County office.

The offices of defendant Curtis-Jansen’s attorney are located in Madison County. Defendant A.O. Smith’s counsel have their offices in St. Clair County. Plaintiff’s attorneys have their offices in Madison County.

Of the 13 persons revealed in discovery as having knowledge of relevant facts, two have addresses in Effingham County, five have addresses in Clinton County, one has an address in Shelby County, and two have addresses in Madison County.

An affidavit by the statistician of the Administrative Office of the Illinois Courts reveals that in 1985 the time lapse between filing of a complaint in a law jury case over $15,000 and trial in Madison County was 37.8 months, in Clinton County, 18.7 months, and in Greene County, zero months. In 1984, only 11% of all law jury cases over $15,000 filed in Greene County were pending more than 12 months, while 64% of all law jury cases over $15,000 filed in Madison County during 1984 were pending more than 12 months.

Following discovery, defendants amended their motions to transfer venue on forum non conveniens grounds. Defendants’ motions were denied by order of court on December 18, 1987. Defendants bring this appeal pursuant to Supreme Court Rule 306(a)(1)(ii) (107 Ill. 2d R. 306(a)(1)(ii))- We reverse the trial court’s order denying defendants’ motions to transfer venue on forum non conveniens grounds.

Under the doctrine of forum non conveniens, a cause may be transferred to a different forum than that in which plaintiff brought it where to do so would better serve the convenience of the parties and the ends of justice. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1293.) In deciding whether to transfer a cause on forum non conveniens grounds, the court must balance the following factors: the relative ease of access to sources of proof; the availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; the possibility of view of premises, if view would be appropriate to the action; the administrative difficulties flowing from court congestion; a local interest in having localized controversies decided at home and the unfairness of burdening citizens in an unrelated forum with jury duty. Bland, 116 Ill. 2d at 224, 506 N.E.2d at 1294.

Also to be given some weight in this balancing process is the plaintiff’s choice of forum, as the plaintiff’s right to select the forum is a substantial one. (Bland, 116 Ill. 2d at 225, 506 N.E.2d at 1294.) However, where the plaintiff’s choice of forum is not the county in which he resides, his choice of forum is entitled to much less deference. (Bland, 116 Ill. 2d at 228, 506 N.E.2d at 1296.) This is because the central purpose of the forum non conveniens doctrine is to assure that the trial is convenient. (Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 367, 456 N.E.2d 98, 102.) When plaintiff has chosen his resident county as the forum, it is reasonable to assume that the choice is convenient. However, when the plaintiff is foreign to the forum chosen, this assumption is much less reasonable and the plaintiff’s choice deserves less deference. Wieser, 98 Ill. 2d at 367, 456 N.E.2d at 102.

Applying the above factors to the case before us, we are unable to find any significant factual connection between plaintiff’s cause of action and Madison County. It would appear that no sources of proof are to be found in Madison County. The silo itself, as well as plaintiff, and presumably plaintiff’s records pertaining to his cattle-raising operation, are in Greene County. The records of defendant Curtis-Jansen are kept either in Clinton County or Effingham County, and certainly no records of defendant A.O. Smith are to be found in Madison County. That one or two witnesses may reside in Madison County is not sufficient connection with that forum to justify denial of defendants’ motions, especially where numerous and more important factors point to other more appropriate fora. (Bland, 116 Ill. 2d at 226, 506 N.E.2d at 1295.) At least 5 of the 13 individuals listed by defendant Curtis-Jansen in its answers to interrogatories as possible witnesses reside in Clinton County. The grain silo is located in Greene County. Finally, statistics show that the problem of court congestion is much more severe in Madison County than in either Clinton County or Greene County.

The only connections plaintiff’s cause of action has with Madison County are that both defendants transact business there, although neither has an office there, and that plaintiff’s attorneys and defendant Curtis-Jansen’s attorneys have their offices there. Neither of these facts is sufficient to justify denial of defendants’ motions to transfer venue. Bland, 116 Ill. 2d at 226, 506 N.E.2d at 1295; Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 232, 478 N.E.2d 370, 374.

Plaintiff argues that in terms of mileage, Madison County is the most convenient to the majority of possible witnesses revealed in the record. However, the distance between counties is only one factor to be considered in deciding a motion to transfer venue and should not be given undue weight. (Bland, 116 Ill. 2d at 227, 506 N.E.2d at 1295.) Furthermore, in order to justify denial of a defendant’s motion to transfer venue, the forum chosen by plaintiff must have sufficient connection with the litigation to justify imposition of the burden of litigation on its citizens and court system. (Bland, 116 Ill. 2d at 229, 506 N.E.2d at 1296.) In this case, there are no significant facts connecting plaintiff’s cause of action to Madison County. Instead, the balance of relevant factors is clearly in favor of defendants.

Although broad discretion is vested in the trial court in determining whether to grant or deny a motion to transfer venue on forum non conveniens grounds, that court’s decision will be reversed on review if it constitutes an abuse of discretion. (Bland, 116 Ill. 2d at 223, 506 N.E.2d at 1293.) Given the circumstances here, we find that the trial court abused its discretion in denying defendants’ motions to transfer venue. Accordingly, we reverse the order of the trial court and remand this cause to the circuit court of Madison County with directions that the circuit court transfer this cause to a more appropriate forum.

For the foregoing reasons, the order of the circuit court of Madison County is reversed and this cause is remanded with directions.

Reversed and remanded.

LEWIS, J., concurs.

JUSTICE HOWERTON,

dissenting:

This court is to review the circuit court’s decision by the abuse of discretion standard. That means we look to see if there was any evidence at all to support the decision. If there was no evidence to support it, the decision was irrational and must be reversed; on the other hand, if there was any evidence at all supporting the decision, it was rational and must be affirmed.

Look at the following table.

Distance

I cannot agree that the circuit court’s decision was irrational. Forum non conveniens is Latin. Its root, translated to English, is convenience. Convenience means the quality of being convenient. Convenient means easy to reach; accessible. Madison County looks convenient to me.


author: JUSTICE RARICK

text:
      In re MARRIAGE OF KENNETH REX STEVENS, Petitioner-Appellee, and ANITA RUTH STEVENS, Respondent-Appellant.
    Fifth District
    No. 5—88—0396
    Opinion filed May 11, 1989.

      Donald E. Irvin, of Mt. Vernon, for appellant.
    Marilyn B. Resch, of Parker, Siemer, Austin, Resch & Resch, of Effingham, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Anita Ruth Stevens (Anita) appeals from the judgment of the circuit court of Crawford County awarding custody of her son to Kenneth Rex Stevens (Rex). We affirm.

Anita and Rex were married in 1979. One child, Brice Cole Stevens (Cole), was bom of this marriage on January 24, 1983. The parties’ marriage subsequently was dissolved, and Rex and Anita were awarded joint custody of Cole on May 20, 1986. On October 30, 1987, Anita filed a petition for permission to remove Cole from Illinois and to modify the joint custody order. Anita had remarried and planned to move to Florida with her new husband and two children from a previous marriage. On January 1, 1988, Rex filed his response and counterpetition to modify custody. On May 19, 1988, the trial court, after accepting a stipulation by the parties that joint custody should be terminated and that a substantial change in circumstances had occurred warranting a change in custody arrangements, began a three-day hearing on the issue of custody. The trial court determined it was in Cole’s best interest for custody to be awarded to his father, Rex.

Anita argues on appeal the trial court lacked jurisdiction to hear either party’s petition to modify custody because the requirements of section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 610(a)) were not met. Section 610(a) states: “Unless by stipulation of the parties, no motion to modify custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1987, ch. 40, par. 610(a).) Anita claims no stipulations were made before the parties’ petitions were filed, nor did the trial court determine that their petitions could be filed prior to the expiration of the two-year statutory period. In addition, the hearing began before the expiration of the two-year period. Consequently, Anita argues everything that occurred was and is null and void. We cannot accept Anita’s position. Section 610(a) does not specify at what point stipulations by the parties must be made or entered. Once the parties stipulated prior to the beginning of the hearing that joint custody should be terminated and a substantial change in circumstances had occurred, compliance with the requirements of section 610(a) had been met. Quite simply, what is required is the stipulation, not its precise timing. More importantly, Anita failed to object to this allegedly improper proceeding and sat through the hearing without objection to the timing of the stipulations until an adverse judgment was rendered. Anita cannot now complain, especially when she initiated the custody modification in the first place. That the parties elected essentially to forego the protections of section 610(a) and proceed on the merits does not render the decision void. Such jurisdictional requirements clearly can be waived. (See In re Custody of Sexton (1981), 84 Ill. 2d 312, 319-22, 418 N.E.2d 729, 732-34.) In any event, whether or not the stipulations were timely filed, two of the three days of hearing were held after the expiration of the two-year statutory period, thereby obviating the need to comply with the requirements of section 610(a) and ensuring proper jurisdiction in the trial court under these circumstances. See In re Custody of Dykhuis (1985), 131 Ill. App. 3d 371, 373, 475 N.E.2d 1107, 1109.

Anita also argues the ruling of the trial court awarding custody of Cole to Rex is against the manifest weight of the evidence. Again, we cannot agree. The determination of child custody rests largely in the broad discretion of the trial court, for it alone is in the best position to hear and evaluate all of the evidence, assess the credibility of the parties and determine the needs of the child. (See, e.g., In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498-99, 485 N.E.2d 367, 370-71; In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 681, 509 N.E.2d 707, 713-14.) The overriding consideration necessarily is the best interests and welfare of the child, not the desires of the individual parents. (See Jines v. Jines (1978), 63 Ill. App. 3d 564, 568-69, 380 N.E.2d 440, 443.) Here, the trial court found that Cole’s best interests would be served by awarding custody to his father in order to provide for continuity and stability of environment. We cannot say the trial court abused its discretion in this instance.

By awarding custody to Rex, Cole will be able to remain in the area he has grown up in and is familiar with; he will be able to continue living in the house he has lived in since birth; he will keep the same baby-sitter he has had since he was seven months old; and he will be able to maintain close contact with friends and relatives. If Cole were to move to Florida, all that is familiar would be gone. While such a change normally is not devastating for a child, when both parents are fit and proper, it makes little sense to disrupt the child’s life any more than necessary in the wake of a dissolution of marriage and division of the family. In addition, all evidence revealed Cole has an unusually close relationship with his father, and Cole’s stated preference, while only one factor to be considered, was to remain with his father. We also note Anita was granted liberal visitation in order to ensure a continuing relationship with her and Cole’s half siblings. Because Rex offers Cole more continuity and a more stable home environment, the award of custody to Rex is not against the manifest weight of the evidence. Consequently, we find no abuse of the trial court’s discretion in this instance. See In re Marriage of Ramer (1980), 84 Ill. App. 3d 213, 405 N.E.2d 401; Jines, 63 Ill. App. 3d 564, 380 N.E.2d 440. See also Drummond, 156 Ill. App. 3d 672, 509 N.E.2d 707.

Anita argues, however, because Cole is so young he should stay with his mother. The “tender years presumption,” while of questionable current validity (see Jines, 63 Ill. App. 3d at 569, 380 N.E.2d at 443), is at most only one factor to be taken into account by the court in determining the best interests of the child. (See Ramer, 84 Ill. App. 3d at 217, 405 N.E.2d at 404.) Moreover, no natural equities exist in favor of a mother who will be working and will not remain full time in the home. Jines, 63 Ill. App. 3d at 569, 380 N.E.2d at 443.

Anita next asserts Cole’s best interests would be better protected if she were awarded custody because of Rex’ racing activities. Anita argues Rex spends a great deal of time in connection with and in preparation for drag racing and, in addition, cannot properly supervise Cole in the pit area when he is racing. The evidence, however, reveals that Rex participates in approximately seven to nine races a year. Most of these involve nostalgia events which require less time and preparation on Rex’ part. In addition, other members of Rex’ family and friends also attend the races and supervise Cole in the pit area while Rex is racing. Anita presented no evidence of negligent supervision, only her unwarranted fears and suspicions.

Anita also takes issue with Rex’ relationship with his current girlfriend, who he does not intend to marry at the present time. Anita believes this relationship is detrimental to Cole’s well-being. Rex testified, however, all encounters occurred when Cole was not at home. In addition, the evidence shows that Cole and Rex’ girlfriend get along well together. Moreover, Anita has little room to complain when the evidence indicates she engaged in similar conduct prior to her third marriage.

For the aforementioned reasons, we affirm the judgment of the circuit court of Crawford County awarding custody of Cole to Rex Stevens.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.