author: JUSTICE ALLOY JUSTICE HEIPLE,

text:
    RANDALL NEWLIN, a Minor, by Edward Newlin, his Father and Next Friend, Plaintiff-Appellee, v. MICHAEL J. FORESMAN; a Minor, Defendant-Appellant.—(E. B. JONES, Public Adm’r of the Estate of Larry E. Hopper, Deceased, Plaintiff-Appellee, v. MICHAEL J. FORESMAN, a Minor, Defendant-Appellant; DAVID L. ROSS, Plaintiff-Appellee, v. MICHAEL J. FORESMAN, a Minor, Defendant-Appellant.)
    Third District
    No. 81-123
    Opinion filed February 19, 1982.

      Watts C. Johnson, of Johnson, Martin & Russell, of Princeton, for appellant.
    Anthony C. Raccuglia, of Anthony C. Raccuglia & Associates, of Peru, for. appellees Randall Newlin and David L. Ross.
    Joseph T. McGuire and Mark J. Condon, both of Perz and McGuire, of. Chicago, and Roger L. Williamson, of West, Neagle, and Williamson, of Gales-burg, for appellee E. B. Jones.
   JUSTICE ALLOY

delivered the opinion of the court:

This case arose out of a collision between two cars near Princeton, Illinois. The trial court directed verdicts for two of the plaintiff-appellees on the issue of contributory negligence and against the defendant-appellant on the issue of his negligence. The jury awarded two plaintiffs $37,250 and $32,100, and awarded an additional $52,000 to the estate of Hopper, a plaintiff-defendant. The defendant asked for a new trial in his post-trial motion, alleging several errors in the original trial. The trial court denied this motion and the defendant now appeals.

On October 1, 1977, two cars collided in a head-on collision on Railroad Avenue, east of Princeton, Illinois. Railroad Avenue is a country road, approximately 20 feet wide with no painted center line. The two cars were occupied by five teenage boys. One car, driven by Larry Hopper, was eastbound on Railroad Avenue. David Ross and Brad Davis, Hopper’s passengers, were sitting in the front seat. The second car, driven by Foresman, was westbound. The collision occurred just over the crest of the westernmost of two close, consecutive hills.

Hopper and Davis died in the collision. Randall Newlin, the only passenger in Foresman’s auto, suffered injuries in his back and left arm and shoulder. Ross, the surviving passenger from Hopper’s auto, suffered a broken left arm, lacerations on his right hand and wrist and a possible concussion. Apparently, Foresman was uninjured.

Newlin, Ross and the Davis administrator sued Foresman and Hopper’s administrator. Hopper’s administrator also sued Foresman on behalf of Hopper’s estate. The Davis estate settled its claims against both defendants. The trial court consolidated the remaining actions and tried them together. We will detail the accident, injuries and events at trial as they become relevant to particular issues.

The defendant first challenges the directed verdicts for the plaintiff-passengers on the issue of their contributory negligence. Newlin testified that Foresman was driving normally until a few seconds before the collision. At that time, Foresman suddenly accelerated to 70 or 75 miles per hour and moved out of his lane. The sudden acceleration began at the top of the first hill. As Foresman approached the top of the second hill, Newlin testified, Foresman was still traveling about 70 miles per hour. Newlin also stated, and the defendant admitted, he wanted Foresman to move back into the proper lane, fastened his seat belt and locked his door. Foresman collided with Hopper seconds later. Foresman testified that he was traveling west on Railroad Avenue, no faster than 55 miles per hour. Foresman claims that, after Newlin warned him to move to the right, he slowed down and moved back into his lane.

It is well settled that a trial court should enter a directed verdict only when the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Foresman argues that Newlin’s failure to protest the speed of the vehicle creates an issue of fact for the jury as to whether he was contributorily negligent. Foresman relies on several cases from Illinois which indicate that a passenger has a duty to warn a driver of excessive speed. E.g., Schultz v. Stephan (1956), 8 Ill. App. 2d 563, 132 N.E.2d 30 (abstract); Wilson v. LaCost (1974), 20 Ill. App. 3d 624, 314 N.E.2d 27; Hayes v. Alsburg (1978), 72 Ill. 2d 560, 382 N.E.2d 239.

In Hayes, the supreme court ruled the issue of contributory negligence of a plaintiff-passenger who was asleep at the time of the collision was properly before the jury. The plaintiff and driver had traveled all day, were still on the road at 1:30 a.m., traffic was heavy and there was evidence of excessive speed. The court stated, “[a] jury might have inferred that the speeding had been continuous and concluded that an ordinarily prudent passenger would not have gone to sleep under all these circumstances.” 72 Ill. 2d 560, 567.

Hayes does not, however, mandate a reversal of the judgment here. In Smith v. Bishop (1965), 32 Ill. 2d 380, 205 N.E.2d 461, the driver of an auto attempting to pass a truck on the left collided with the truck when it suddenly made a left turn. The plaintiff-passenger testified that, if the defendant’s left turn signal was operating before her driver attempted to pass, she did not see it. The supreme court upheld a directed verdict for her on the issue of contributory negligence. “[UJnless the passenger sees an obvious danger which the driver might not see there would be no duty to warn him.” 32 Ill. 2d 380, 384.

More recently, in Bauer v. Johnson (1980), 79 Ill. 2d 324, 403 N.E.2d 237, the supreme court ruled that a passenger-owner was free from contributory negligence as a matter of law when she did not notice anything unusual in the way her newly licensed son drove the car, next saw the defendant’s vehicle approaching from the side and then shouted “look out” when the car was 50 feet from eventual collision. The court quoted Kalechman v. Drew Auto Rental, Inc. (1973), 33 N.Y.2d 397, 402-03, 308 N.E.2d 886, 889, with approval:

“[WJith the advent of the modern automobile there is no longer any basis for assuming that the passenger, no matter what his relationship to the driver may be, has the capacity to assert control over or direct the operation of a moving automobile. The design of the vehicle, the high speeds at which it travels, the split second timing which is often necessary to avoid collision have all combined to erode the assumption that anyone other than the driver can effectively control the operation of the vehicle in traffic.
In fact, under modern driving conditions anyone who ‘allows another to drive would only increase the risk of accidents by interfering with the driver’s control of the car or by diverting his attention’ [citation].”

Although both cases concern the issue of imputing the negligence of a driver to the owner-passenger of the vehicle, the circumstances are similar to the case at bar and the reasoning is persuasive. Furthermore, this court recently noted that occupants of a vehicle have no practical control over its operation. Andes v. Lauer (1980), 80 Ill. App. 3d 411, 399 N.E.2d 990, citing with approval Mirza and Appleman, Illinois Tort Law and Practice §4.7 (1974).

On the issue of contributory negligence, the evidence—in its aspect most favorable to Foresman—indicates that Newlin noticed nothing unusual in the manner of Foresman’s driving until one-half mile before the collision. At that point, Foresman accelerated to approximately 70 to 75 miles per hour on the downgrade of the first hill. Newlin, in the 20 seconds between acceleration and impact, told the driver to get to the right side of the road, locked his door and buckled his seat belt. Newlin sufficiently warned Foresman that his driving now posed a threat to their safety. The fact that Newlin could not or did not detail everything that was dangerous about the defendant’s driving in those seconds does not create a question of contributory negligence. Moreover, an explicit statement on the speed of the vehicle was unnecessary, because Foresman admitted he was slowing down as he moved back into his lane. Foresman took Newlin’s statement and actions as a broad warning. Under these circumstances, Newlin cannot be held contributorily negligent. The trial court did not err in directing a verdict on this issue.

Similarly, the trial court did not err when it directed a verdict in favor of the other plaintiff, Ross, on the issue of his contributory negligence. Ross, the only surviving occupant of the eastbound Hopper auto, suffered retrograde amnesia as a result of the accident. He does not recall the accident itself or what happened seconds before impact. According to his unrebutted testimony, he noticed nothing unusual in the way Hopper drove the auto. As they came up the hill, he saw headlights shining in the air. He stated that Hopper was in the eastbound lane at that time, though conceded on cross-examination that Hopper might have been over the center line.

As Smith v. Bishop and Andes v. Lauer indicate, a passenger has no duty to warn the driver unless he sees a dangerous condition developing and appreciates that danger. Ross, as a matter of law, did not see and ' ignore an obvious impending danger. (Andes v. Lauer (1980), 80 Ill. App. 3d 411, 415.) The trial court properly directed a verdict in favor of Ross as to his freedom from contributory negligence.

The defendant next challenges the directed verdict against him on the issue of his negligence. The directed verdict was proper, under the Pedrick rule, if the evidence, viewed in its aspect most favorable to Foresman, so overwhelmingly favors the plaintiffs that no contrary verdict would be permitted to stand. Foresman testified that he believed he was traveling at 55 miles per hour. He based his belief on the

• treacherous condition of the road. Under adverse examination, he stated that he was not looking at the speedometer, and conceded he could have been traveling 70 miles per hour. He also testified that he was in his lane at the time of the collision.

Besides Newlin’s testimony, the plaintiffs produced two other witnesses: Deputy Muratori, who investigated the scene of the accident and David Rumley, an eyewitness. Rumley testified that he was behind Foresman for a mile and saw his car go up the second hill. He also stated that Foresman was driving approximately 70 miles per hour when he was traveling up the hill, and that Foresman was off the road on the south shoulder (thus, in the incorrect lane) at that point.

Deputy Muratori described the scene of the accident. The point of impact was 98 feet west of the top of the hill. The deputy determined that the vehicles were in the same position when he arrived as they were immediately after impact. Debris and gouge marks were in the eastbound (Hopper’s) lane. There was no debris in Foresman’s lane. Foresman’s car left a 50-foot skid mark entirely in Hopper’s lane. When the skid mark started, Foresman’s car was more than halfway into the oncoming lane. Although Muratori believed both vehicles were over the imaginary center line, he concluded that the point of impact was in the eastbound lane.

The defendant relies on cases which state that driving on the wrong side of the road is not negligence as a matter of law, but is a question of fact for the jury. (E.g., Andres v. Green (1955), 7 Ill. App. 2d 375, 129 N.E.2d 430; Polkey v. Phillips (1980), 86 Ill. App. 3d 677, 408 N.E.2d 348.) In Andres, the defendant contended she was confronted by two cars traveling abreast and swerved into the left lane. In Polkey, the defendant contended he had to apply his brakes suddenly, causing his vehicle to skid into the opposite lane, when the car in front of him suddenly braked. The juries in those cases could have logically concluded the defendants acted reasonably. In the case at bar, the physical evidence clearly indicates that Foresman was more than halfway into the left lane, one-half second before impact. He offers no reasonable explanation for this presence.

Foresman argues the jury could reasonably infer that he was driving at a safe speed, that Hopper was in the middle of the road and that Hopper’s position was the sole proximate cause of the accident. We believe that plaintiff has satisfied the Pedrick rule. The physical evidence, including the position of the debris and the skid marks, is strong support for the testimony of the other witnesses. Moreover, Foresman himself admits he was over the center line at one point and was equivocal on his speed. The dissent in this case makes much of Foresman’s testimony that he was in his lane at moment of impact. Recognized laws of physics, however, dictate that his car must have been at the points where it left a skid mark. The skid mark is 50 feet long and starts halfway in the opposite wrong lane of traffic. Assuming Foresman was. traveling 55 miles per hour, as he said he was, the skid mark indicates that he was halfway over the center line approximately one-half second before impact.

The fact that Foresman testified contrary to the overwhelming evidence does not necessitate a jury determination on the question of his negligence. “[T]he presence of some evidence of a fact which, when viewed alone may seem substantial, does not always, when viewed in the context of all the evidence, retain such significance. As the light from a lighted candle in a dark room seems substantial but disappears when the lights are turned on, so may weak evidence fade when the proof is viewed as a whole.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 504-05, 229 N.E.2d 504.) The dissent also notes that Hopper’s auto may have been over the center line also. Assuming that is true, it does not vitiáte the validity of the directed verdict against Foresman on the issue of his negligence. Hopper’s contributory negligence is not an issue before this court. That issue went to the jury, and the jury found against the defendant Foresman. Even if Hopper was also over the center line, the jury would have to conclude that Foresman was also a proximate cause of the collision and that his actions constituted negligent driving. Considering all the evidence in the light most favorable to Foresman, the evidence so overwhelmingly favors the plaintiffs that no contrary verdict could ever stand on the issue of Foresman’s negligence.

The defendant alleges that he was prejudiced by the trial court’s failure to enforce its orders and also claims the suits of Ross and Newlin against the estate of Hopper were shams. Foresman argues in his brief that Hopper did not answer the plaintiffs’ complaints, though the plaintiffs point out—and the defendant concedes in his reply brief—that Hopper’s estate did file tardy answers. When counsel for Hopper did not file answers or otherwise plead, the trial court sua sponte ordered Ross and Newlin to obtain default decrees against Hopper or suffer dismissal of their suits. The plaintiffs did not obtain the default judgments, and the court did not dismiss the complaints. Foresman argues that this refusal to act demonstrates their suits were shams and that this worked to his prejudice. Foresman cites no authority which would require the plaintiffs to obtain default decrees or object to untimely answers. The mere fact that they did not object is as indicative of knowledge of grounds for relief from a default judgment as it is of collusion between the parties.

Foresman also argues, however, that the plaintiffs’ voluntary dismissal of their claims against Hopper at the close of all the evidence proves the suits were not genuine in the first place. The defendant adds that these actions worked to his prejudice, because the jury must have viewed these motions as exoneration of Hopper. Counsel for Hopper reply that only after the evidence is presented at trial can the plaintiffs determine that no cause of action exists.

A motion for voluntary dismissal of a plaintiff’s suit after trial has begun is addressed to the discretion of the court and is reversible only for abuse of that discretion. (Ill. Rev. Stat. 1979, ch. 110, par. 52; Rauman v. Advance Aluminum Casting Corp. (1960), 27 Ill. App. 2d 178, 184, 169 N.E.2d 382.) In Turnbull v. Porter (1965), 55 Ill. App. 2d 374, 206 N.E.2d 97, this court ruled that, under proper circumstances, a plaintiff has a right to voluntarily dismiss his suit against a codefendant regardless of his motives for doing so. Unless the underlying motives manifest themselves in prejudicial acts, there is no basis for reversal. (55 Ill. App. 2d 374, 374h.) Contrary to Foresman’s argument, the findings of the jury that Hopper was not contributorily negligent does not prove prejudice. The trial court instructed the jury on finding contributory negligence and Foresman was free to argue it to the jury. The trial court did not abuse its discretion in granting plaintiffs’ motion for voluntary dismissal of Hopper as a defendant.

The defendant next argues that the trial court disproportionately allocated the number of voir dire peremptory challenges. The trial court decided to permit nine challenges per side, giving Newlin and Ross six plaintiff challenges, Foresman six defendant challenges and Hopper three plaintiff challenges and three defendant challenges. Foresman argues the plaintiffs received 12 challenges because Hopper was not a genuine defendant. This argument is predicated on the notion that the suits against Hopper’s estate were not genuine. In light of our ruling on that question, we find no disproportionate allocation of challenges. Foresman also claims that the trial court gave each side nine challenges contrary to section 66(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 66(1)). The maximum, he contends, is eight per side. This argument is without merit. The trial court may, in its discretion, allow both sides up to three additional challenges for each additional party on the side having the greater number of parties. In this case, the court could have permitted six additional challenges, for a total of 11. See Ill. Rev. Stat. 1979, ch. 110, par. 66(1); Ill. Ann. Stat., ch. 110, par. 66(1), Joint Committee Comments, at 288 (Smith-Hurd 1968).

The defendant next appeals the trial court’s refusal to instruct the jury that personal injury awards are not subject to income tax. He cites Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755, to support his argument. In Liepelt, the United States Supreme Court held that juries should be instructed in the nontaxability of damage awards in cases brought under the Federal Employer’s Liability Act (45 U.S.C. §51 et.seq. (1976)). The Illinois Supreme Court has ruled that juries should not be instructed on the tax consequences of damage awards. (Hall v. Chicago & North Western Ry. Co. (1955), 5 Ill. 2d 135, 150-52, 125 N.E.2d 77; Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 430, 283 N.E.2d 230, cert. denied (1972), 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 322.) The defendant argues that these cases are overruled by Liepelt, because they were also FELA cases. Although that is true as to FELA cases, this court, however, is not bound by Liepelt as to claims arising under State law. Hall and Raines are directly applicable to the case at bar, and the trial court properly followed those cases.

The defendant next charges that the plaintiffs improperly injected the question of insurance into the case through their voir dire questions and through the testimony of Deputy Muratori. Counsel for plaintiffs repeatedly asked prospective jurors if they were ever involved in auto accidents and, if so, if they were involved in litigation or made a “claim” as a result of those accidents.

We first note that the scope of voir dire examination rests within the discretion of the trial court. Second, the general rule is that where the record shows that counsel intended to improperly inform the jury on voir dire that the defendant is insured, and where the circumstances demonstrate a prejudicial effect, such conduct is reversible error. (Dinger v. Rudow (1957), 13 Ill. App. 2d 444, 448, 142 N.E.2d 128.) The case at bar falls outside this rule. Counsel here asked the jurors questions to ascertain their familiarity with auto accidents and the consequences of such accidents. He did not state or imply that any party was covered by insurance. On this basis, Foster v. Lanciault (1979), 70 Ill. App. 3d 962, 388 N.E.2d 1140, cited by Foresman, is distinguishable. The trial court did not err in permitting counsel to ask whether jurors were ever involved in lawsuits or insurance claims as a result of an auto collision.

The defendant also claims he was prejudiced when plaintiffs’ witness, Deputy Muratori, inadvertently mentioned the existence of insurance. During redirect examination, this colloquy with the deputy occurred:

“Q. And were you ever talked to by someone in reference to this particular accident?
A. I believe the insurance companies contacted me for a copy of the report.”

The record indicates this comment was unintentional and that nothing further was said concerning insurance. Foresman moved for a mistrial on the basis of this comment. The court denied the motion and gave the jury an Illinois pattern instruction not to infer or consider the existence of insurance.

The defendant relies on Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 346 N.E.2d 448, for his argument that the inadvertent mention of insurance constitutes reversible error. In Cecil, the defendant doctor, in a medical malpractice suit, testified that he prepared insurance forms for the plaintiff. This is far more prejudicial than the vague, general comment in the instant case.

In Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 362 N.E.2d 446, the Illinois Appellate Court noted that courts generally are more tolerant of references to automobile liability insurance due to its universal prevalence. (48 Ill. App. 3d 260, 266.) A mistrial is not appropriate where the reference—by someone other than the plaintiff’s counsel—was inadvertent and with no intent to prejudice the defendant. (See also Williams v. Consumers Co. (1933), 352 Ill. 51, 56, 185 N.E. 217; Burnett v. Coho (1972), 7 Ill. App. 3d 266, 273-74, 285 N.E.2d 619.) We find no error in the trial court’s refusal to enter a mistrial.

The appellant next contends the plaintiffs asked questions of their witnesses, of a third-party witness and of the defendant concerning the consumption of alcohol. He claims that intoxication was never an issue and the plaintiffs asked those questions only to establish suspicions in the minds of the jurors. At trial, plaintiffs’ counsel asked Ross:

“Q.: Oh, incidentally David, at any time from the time that you were with Larry Hopper, until the time you were brought to the hospital or after this impact, did you have anything of an intoxicating or alcoholic nature to drink?
Mr. Johnson: Objection.
The Court: Sustained. Let’s have a side bar.
Mr. Raccuglia: I asked if he had anything to drink of an intoxicating nature.
Mr. Johnson: He has, let’s have an answer.
The Court: All right, withdraw the objection?
Mr. Johnson: Yes.
A.: No, I did not have.”

Defense counsel did not make any further objection and, in fact, asked David Rumley (a nonparty eyewitness) whether he or Foresman had anything alcoholic to drink. The defendant has waived objection on this ground. Even on the merits, we note that counsel presented the evidence concerning the lack of consumption of alcohol in a positive aspect, perhaps to defeat any suspicion in the jurors’ minds that five teenage boys out driving on a Saturday night probably were drinking. Indeed, the appellant implicitly concedes, in his reply brief, the jury would be likely to suspect such behavior by teenage boys. The defendant’s reliance on Clarquist v. Kirschenman (1978), 55 Ill. App. 3d 76, 370 N.E.2d 840, is misplaced. In Clarquist, the irrelevant questioning as to consumption of intoxicants occurred during an attempt to impeach through conjecture and innuendo. Hére, presumably, plaintiff’s counsel was not trying to impeach his own witnesses and, in fact, the lack of presence of alcohol was the focus of all questioning.

■Foresman next appeals the allegedly erroneous admission of evidence remote from the scene of the accident. On direct examination, plaintiff’s counsel asked questions of Rumley concerning Foresman’s driving one or two miles from the scene, when Foresman passed Rumley’s car at an intersection. Defense counsel for Foresman did not object. When counsel for Hopper cross-examined, he asked whether Foresman ran the stop sign at the intersection. An objection by Foresman was overruled on the grounds that the question was within the scope of direct examination. Rumley answered equivocally, noting that he did not see Foresman stop. The plaintiff’s counsel also questioned Newlin about Foresman’s driving prior to the collision. Defense counsel again objected and the trial court overruled. Newlin stated that they passed Rumley’s car at the intersection and that there was nothing unusual in the manner in which Foresman was driving. Counsel for Hopper’s estate, during cross-examination, asked about the stop sign again, and Foresman’s objection was sustained.

Contrary to Foresman’s contentions, his conduct as a driver prior to the collision is relevant. Foresman, in his earlier argument concerning contributory negligence, relies on Hayes v. Alsburg (1978), 72 Ill. 2d 560, 382 N.E.2d 239. In Hayes, the supreme court ruled that the question of a passenger’s contributory negligence, when he was asleep at the time of the collision, is a question for the jury where it could infer the driver consistently exceeded the speed limit. If conduct remote from the scene can be used to prove a passenger had warning of negligent driving, then conduct at a similar point in time must also be relevant to determine there was no warning of dangerous driving. Here, Newlin sought to establish that Foresman was driving normally, that there was no cause for alarm, and that the erratic driving started less than one-half mile—or 20 to 30 seconds—before impact.

Foresman’s reliance on Flesberg v. Prince Warehouse Co. (1962), 37 Ill. App. 2d 22, 184 N.E.2d 813, is misplaced. In Flesberg, evidence of driving remote from the scene of the collision was improperly admitted to prove the negligence of the defendants. In the case at bar, Hayes indicates that plaintiff-passengers can establish their freedom from contributory negligence by demonstrating otherwise normal operation of the auto by the drivers.

Foresman next argues he was prejudiced by plaintiff counsel’s closing argument. During rebuttal arguments, counsel for plaintiffs stated that Foresman’s father was a doctor and á colleague of Dr. Wilson, one of the medical witnesses. Foresman claims that there was no evidence that Dr. Foresman was the defendant’s father (though he concedes that plaintiffs’ counsel did mention this during voir dire), that there was no evidence concerning the relationship between Dr. Foresman and Dr. Wilson and that the effect of the statement was to distort medical testimony and to insinuate the defendant was wealthy.

Assuming the facts concerning the relationship between Dr. Fores-man, the defendant and Dr. Wilson were not properly before the jury, we nonetheless find no reversible error. The comments were neither inflammatory nor vituperative. Regan v. Vizza (1978), 65 Ill. App. 3d 50, 382 N.E.2d 409, and Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 346 N.E.2d 448, cited by the defendant, are not in point. In those cases, counsel made unwarranted personal attacks on opposing counsel and medical experts. The statements were far more volatile than the one defendant objects to here. In addition, the mere mention that the defendant’s father is a doctor does not insinuate his minor son is independently wealthy.

Finally, the defendant contends the verdicts were excessive. The evidence concerning the injuries to Newlin and Ross was conflicting. It is for the jury to determine weight and credibility of the evidence, as well as to find the extent and compensation of injuries. (Potter v. Rodrick (1979), 77 Ill. App. 3d 7, 395 N.E.2d 746.) In light of the evidence before the jury, the verdicts for these two plaintiffs are not excessive. Additionally, we do not find verdicts for $52,000 in the Hopper estate’s wrongful death action to be excessive. See Baird v. Chicago, Burlington & Quincy R.R. Co. (1976), 63 Ill. 2d 463, 349 N.E.2d 413 (verdicts of $188,000 for each of the wrongful deaths of two minors held not excessive).

For these reasons, the judgments of the trial court are affirmed.

Affirmed.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

This case should be reversed and remanded because of a single but monumental error. The trial court directed a verdict against the defendant, Foresman, on the issue of his negligence in the face of credible evidence that Foresman was not negligent. This is not to say that a jury verdict against Foresman would not be sustainable. Indeed it would. As there was evidence on both sides of Foresman’s negligence, a jury verdict would have been sustainable either way. However, it was manifestly not the trial court’s prerogative to take this matter away from the jury.

The Pedrick test is well known. Often misquoted, it is more often mistakenly interpreted. An explicit difference exists between the criterion necessary to direct a verdict and that sustaining a motion for a new trial. In the latter instance, the court will weigh the evidence and set aside the verdict where it is contrary to the manifest weight of the evidence. But where a motion for a directed verdict is presented, a more conclusive evidentiary standard is required than that which would sanction granting a motion for a new trial. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, quoting Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill. 2d 494, 509-10, and Jardine v. Rubloff (1978), 73 Ill. 2d 31, 35-37.) My colleagues, in paying lip service to the Pedrick rule, obscure this distinction when they conclude that directing a verdict on the issue of Foresman’s liability was correct. I dissent.

The collision happened west of Princeton on a two-lane highway. The Foresman vehicle was westbound; the Hopper vehicle eastbound. The road’s topography is unusual, deceptive, and in local patois known as “roller coaster hill.” Its grade consists of two camel-backed hills, such that vehicles travelling in opposite directions cannot see each other until they reach the crest of the second hill. It is exactly at that locus where the accident creating this litigation occurred.

In addition to the testimony the majority notes, Foresman testified he did not know where the cars, in relation to the parties’ respective highway lanes, collided. He admitted at one point he was partially in the wrong lane, but he stated he had corrected his lane usage five to 10 seconds prior to the impact and before ascending the second hill. Also, he testified that prior to the crash he saw headlights which “* * * seemed to be coming in my path 9 9 Finally, he said he thought he was travelling 55 miles per hour. David Rumley, an eyewitness, declared Foresman’s vehicle was in the wrong lane and moving at an excessive rate of speed.

In reconstructing the accident scene, Deputy Muratori said the Hopper vehicle was three feet over the middle of the road, whereas Foresman’s car was six inches over. The sole survivor of the Hopper vehicle could not testify due to retrograde amnesia.

The physical evidence does not “clearly indicate” that Foresman’s vehicle was in the wrong lane driving 70 miles per hour at the time of the crash. The evidence adduced was conflicting. Deputy Muratori’s investigation indicated, from the position of the automobiles, that Hopper’s vehicle may well have been in the wrong lane when the crash occurred. Rumley’s testimony was directly contradicted by Foresman. Newlin’s testimony was disputed by Foresman’s depiction of the events immediately preceding the impact, and might have been neutralized in a juror’s mind by Newlin’s own inconsistent statements in other areas of his testimony. Defendant said his car might have been in the westbound or eastbound lane at the time of the impact. Although the majority indicates otherwise, defendant did not have to prove where his car was located.

In deciding whether to direct a verdict, the task is not merely to tot up the evidence on each side to see which side has more. This is nothing more than weighing the evidence. That is what the trial judge and my colleagues have done. Such is an improper standard for a directed verdict. The test, rather, is whether a contrary verdict could ever stand. Accordingly, I would reverse and remand.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    ALDO E. BOTTI, Plaintiff-Appellant, v. AVENUE BANK AND TRUST COMPANY OF OAK PARK, Trustee, et al., Defendants-Appellees.
    Second District
    No. 81-421
    Opinion filed February 19, 1982.
    Aldo E. Botti, pro se, and John N. Pieper and Marcia N. Johnson, all of Botti, Marinaccio and Wilkinson, of Wheaton, for appellant.
    Anthony C. Valiulis and Michael B. Hyman, both of Much, Shelist, Freed, Denenberg, Ament & Eiger, and McNeill, McElroy, Fick & Singer, both of Chicago, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Aldo E. Botti, plaintiff, a prospective purchaser of land held in a land trust, sued the Avenue Bank and Trust Company of Oak Park, as trusted, the trust beneficiary Ruth Stewart, Edward Van De Houten, Jr., the purchaser under a contract entered into prior to the Botti contract, and Clyde Building Corporation, who purchased from Van De Houten. Tortious interference with contract, conspiracy and breach of contract were charged in the complaint. The complaint was dismissed for failure to state a cause of action. (Ill. Rev. Stat. 1979, ch. 110, par. 45.) Botti was denied leave to amend, and he appeals.

Essentially, Botti argues that a cause of action was stated, based on the allegations that the Van De Houten agreement became null and void for failure of Van De Houten to perform according to its terms; that the waiver of these conditions was a breach of the Botti contract; and that the sale to Van De Houten and his conveyance to Clyde therefore amounted to a tortious interference with Botti’s contractual rights. We cannot agree.

The following well-pleaded facts must be taken as true (see Gravitt v. Jennings (1979), 79 Ill. App. 3d 286, 288) for the purpose of ruling on the section 45 motion. The Van De Houten agreement, dated December 15, 1978, contained the conditions:

“2. That Purchaser is able to secure a mortgage of $1,000,000 within 120 days from the date of this contract with an interest rate not to exceed 1% above the then established prime rate of the 1st National Bank of Chicago * * °; purchaser shall have waived the condition of acceptable financing unless within 120 days from the date of the contract he states that he is unable to arrange such financing. Seller shall have an additional 145 days to arrange said financing for Purchaser * * *.
g * * * Purchaser shall not cause or allow any mechanic’s lien claim to be placed on the subject premises, * * *. ft ft ft
5. If any of the conditions in Paragraphs 1, 2, 3 and 4 of this Rider cannot be met, then this Contract shall be null and void without any further action of any party and each party shall be released from any obligation to the other party, and all monies paid by the Purchaser shall be returned to the Purchaser, except those monies spent pursuant to Paragraph 1 of this Rider.”

The Botti agreement was entered into on December 28, 1978, and provided, as pertinent:

“WHEREAS, SELLER has entered into a real estate sales contract dated December 15, 1978, with EDWARD D. VAN DE HOUTEN, JR., a copy of which is attached hereto * * °.
NOW, THEREFORE, the parties agree as follows:
1.) PURCHASER agrees to buy and SELLER agrees to sell the property described in the previous agreement pursuant to the terms and conditions of said previous agreement, including the attached Riders and Exhibits, except as modified herein, upon the termination of the previous agreement by those parties to the previous agreement. * *

There is a further allegation that on or about July 7, 1980, the defendant Ruth Stewart, beneficiary of the land trust, personally requested that Botti grant Van De Houten an extension of time to obtain financing and that plaintiff, who had on June 1, 1980, denied a similar request by Van De Houten denied the beneficiary’s request. There are further allegations that the trustee and Van De Houten finally completed the sale by deed dated December 1, 1979; and that immediately thereafter, Van De Houten sold the property to Clyde Building Corporation by deed dated July 8, 1980.

The Botti agreement plainly provides that plaintiff’s right to purchase could arise only upon the termination of the Van De Houten agreement by the parties to that agreement. The complaint, however, does not allege that the parties terminated that agreement, and in essence admits that the trustee in the Van De Houten agreement performed pursuant to the agreement by the sale under which the trustee’s deed was issued.

While plaintiff does allege the legal conclusion that the Van De Houten agreement was terminated by the latter’s various breaches rendering it null and void, the allegations are simply contrary to law. It is settled that the parties to a contract may waive any provisions in the contract and that such waiver can be demonstrated by “conduct indicating that strict compliance with the provisions of a contract will not be required.” (Lempera v. Karner (1979), 79 Ill. App. 3d 221, 223; Kitsos v. Terry’s Chrysler-Plymouth, Inc. (1979), 70 Ill. App. 3d 728, 731.) This is so even where the contract provides that the agreement shall be “null and void” if certain conditions are not met. (Lempera v. Karner (1979), 79 Ill. App. 3d 221, 222.) Furthermore, the financing provision of the Van De Houten agreement expressly provides that “purchaser shall have waived the condition of acceptable financing unless within 120 days from the date of the contract he states that he is unable to arrange such financing * * “.’’Therefore, both because the complaint did not allege that the Van De Houten contract was terminated and because plaintiff cannot allege termination based solely on any breaches by Van De Houten because the agreement contemplates waiver, no cause of action is stated.

Botti argues for the first time in his reply brief that the trustee had no right to waive the provisions of the Van De Houten agreement. He asserts that under the “prevention” doctrine (Foreman State Trust & Savings Bank v. Tauber (1932), 348 Ill. 280), the termination of the Van De Houten agreement was a “condition precedent” to the trustee’s obligations under the Botti agreement and that the trustee, by refusing to terminate the Van De Houten agreement, wrongfully prevented the condition precedent from occurring. However, Foreman provides that one cannot take advantage of his own wrongful conduct to prevent the fulfillment of a condition to defeat his liability under the contract. (348 Ill. 280, 286.) The complaint alleges nothing “wrongful” about the trustee’s failure to terminate the Van De Houten agreement. As previously noted the waiver of the provisions in the Van De Houten agreement could not be considered wrongful since the parties had the right to waive such conditions and perform the contract. Shear v. National Rifle Association of America (D.C. Cir. 1979), 606 F.2d 1251, 1256, relied upon by Botti, actually supports the argument that the “prevention doctrine” does not apply when the contract, in effect, áuthorizes “prevention.”

The Botti agreement was simply a fallback agreement which would not give rise to a contract of sale unless and until the Van De Houten agreement was terminated. Since it is not alleged or shown that the Van De Houten agreement had been terminated but was, in fact, performed, the trial court’s determination that the complaint was legally insufficient was proper..

Botti places some reliance on the fact that his consent was sought for extensions of time for performance under the Van De Houten agreement. However, where the contract is unambiguous, as here, the intention of the parties is clear from the document’s four corners and the trial court may resolve the issue pursuant to a section 45 motion. Chicago Investment Corp. v. Dolins (1981), 93 Ill. App. 3d 971, 974.

Plaintiff also argues that the trial court abused its discretion in denying the oral motion for leave to amend the complaint to allege “additional facts.” Again, we do not agree. The trial court does not abuse its discretion in refusing leave to amend where, as here, no amendment is presented with the motion and the trial court is given no particular indication of the contents of the proposed amendment. (Old Salem Chautauqua Association v. Illinois District Council, Assembly of God (1958), 13 Ill. 2d 258, 266-67; Hassiepen v. Marcin (1974), 22 Ill. App. 3d 433, 436.) In any case none of the proposed amendments suggested in plaintiff’s brief and in oral argument could revive his complaint as all of the additional facts suggested are still bottomed on what we have found to be a legally erroneous theory.

The judgment of the trial court is affirmed.

Affirmed.

REINHARD and NASH, JJ., concur.


author: JUSTICE REINHARD

text:
      In re ORGANIZATION OF GREATER ALGONQUIN PARK DISTRICT.—(CITIZENS’ COMMITTEE FOR A PARK DISTRICT et al., Petitioners-Appellants, v. THE VILLAGE OF LAKE IN THE HILLS, Respondent-Appellee.)
    Second District
    No. 81-969
    Opinion filed February 19, 1982.

      Donald R. Brewer, of Douglas and Brewer, of Chicago, for appellants.
    Richard G. Flood, and Richard Curran, both of Zukowski, Poper and Rogers, and Murray McGuire, of Franz and McGuire, both of Crystal Lake, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This appeal arises from the dismissal of a petition filed in the circuit court of McHenry County for organization of the Greater Algonquin Park District upon objections raised by several individuals, a municipal corporation, and a bank as trustee. We allowed an expedited appeal and on January 22, 1982, issued a brief decision reversing the trial court and finding the objections to the form of the petition to be without merit. We remanded with directions to the trial court to determine forthwith whether the boundaries as defined in the petition are reasonable, and if so, to place the question of the formation of the park district for submission to the voters on March 16,1982. In this opinion we set forth the reasons for that decision.

The petition for formation of a park district was filed on November 4,1981, in the circuit court of McHenry County. The petition consisted of 146 separate sheets signed by 618 residents of Algonquin, Illinois. The petitions set forth the legal description of the proposed park district and represented that the territory lies within McHenry County, closely approximates the community served by Algonquin, Illinois, and contains no territory contained in any other incorporated park district. Also filed with the petition was the affidavit of David Haraburda stating that on or about November 4, 1981, he caused notice of intention to file a petition for formation of the Greater Algonquin Park District to be published in The Cardunal Free Press, a newspaper of general circulation within the territory of the proposed park district. Attached to the affidavit was the actual notice of petition to form a new park district.

On November 18, 1981, a publisher’s certificate was filed signed by the publisher of The Free Press. The certificate stated that The Free Press is a triweekly, secular newspaper of general circulation regularly published in the city of Carpentersville, Kane County, Illinois. It further certified that the notice of petition for formation of the park district, a copy of which was attached to the certificate, was published in the newspaper on November 6, 1981. Another publisher’s certificate, also filed on November 18, 1981, certified that notice of public hearing regarding the petition to form the park district was published in The Free Press on November 16, 1981.

On December 3, 4, 7, 9, and 10, 1981, various objections to the petition were filed respectively by the village of Lake in the Hills, Robert and Karen Boncosky, Home State Bank of Crystal Lake as trustee under trust number 2674 and its various beneficiaries, Raymond E. Pióte, and Melvin L. Boncosky and William P. Caveny, praying that the petition be dismissed. Each objection set forth a statement of interest. The objection of the village of Lake in the Hills alleged that portions of the proposed park district are either already part of that village or in the process of being annexed. Other objections alleged ownership, either legal or beneficial, of certain real property located within the proposed park district. The nature of the objections of the village of Lake in the Hills, Robert and Karen Boncosky, and Home State Bank essentially were that the petitions did not contain a legally sufficient description of the proposed district and that the boundaries were not reasonable. The objection of Raymond Plote alleged, inter alia: that the petition violated section 2—3 of the Park District Code in that the petition was not accompanied by a request that the circuit judge set a date for public hearing and that the circuit judge did not set a date for public hearing; the petition violated section 28—3 of the Election Code in that it did not state the question of public policy to be submitted and the proper certification of signatures was not made; and that the publication of notices did not meet the requirements of Illinois law. The objection of Melvin L. Boncosky and William Caveny alleged inter alia: notice was insufficient in that it violated section 2—3 of the Park District Code since it was published in a Kane County newspaper; notice of publication violated section 2—2 of the Park District Code in various respects; and the petition was in violation of section 28—3 of the Election Code in that the statement at the bottom of the petition did not certify that it was signed by a registered voter.

A hearing set for December 7 was continued to December 10. No evidence was presented on December 10, and after listening to arguments of counsel, the trial judge dismissed the petition stating that “it is defective publication.” The court below also denied petitioner’s oral motion to strike certain of the objections for lack of legal standing to file objections to the petition.

Formation of a park district is governed by provisions of the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 1—1 etseq.). Section 2—2 (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—2) and section 2—3 (Ill. Rev. Stat. 1979, ch. 105, par. 2—3) provide for the contents of the petition to organize a park district and the filing, notice, and hearing on the petition. The “time and manner of conducting” the referendum to organize a park district are to be in accordance with the general election law of the State. (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 1—5.) Article 28 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 28—1 et seq.) deals with the submission to the voters of questions of public policy, and certain of its provisions, particularly sections 28—1, 28—2 and 28—4, are relevant to the resolution of some of the objections to the petition raised below.

The objectors first contend that section 2—2 of the Park District Code (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—2) was not complied with in two respects: the publication of the notice of intent to petition for formation of a park district was not effectuated prior to the filing of the petition as required by law; and the publication of notice was in The Free Press, which, according to the publisher’s certificate, was a newspaper of general circulation published in the city of Carpentersville, Kane County, and is not in conformance with the statute requiring publication in a newspaper published within the proposed political subdivision, or if none, in a newspaper of general circulation within the territory of the proposed political subdivision. In this case, the proposed park district is entirely within McHenry County.

Section 2—2 provides, inter alia, as follows:

“The petition must include an affidavit attesting that notice of intent to petition for formation of a park district has been published as required by the general election law. * * (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—2.)

The relevant provision of the Election Code is section 28—2 (Ill. Rev. Stat., 1980 Supp., ch. 46, par. 28—2), which provides in pertinent part:

“A petition for the creation of a political subdivision whose officers are to be elected rather than appointed must have attached to it an affidavit attesting that at least 108 days and no more than 138 days prior to such election notice of intention to file such petition was published in a newspaper published within the proposed political subdivision, or if none, in a newspaper of general circulation within the territory of the proposed political subdivision in substantially the following form:
NOTICE OF PETITION TO FORM A NEW_
Residents of the territory described below are notified that a petition will or has been filed, in the Office of-requesting a referendum to establish a new_, to be called the_:__
The officers of the new_will be elected on the same day as the referendum. Candidates for the governing board of the new_may file nominating petitions with the officer named above until__
The territory proposed to comprise the new_is described as follows:
(description of territory included in petition) (signature__
Name and address of person or persons proposing the new political subdivision.”

Petitioners contend that a petition may be filed before the publication of the notice since the form of the notice contained in section 28—2 states that “a petition will or has been filed * * They further contend that an affidavit signed by David Haraburda, one of the proposers of the park district, and filed with the petition states that The Cardunal Free Press is a newspaper of general circulation within the territory of the proposed new park district.

We believe that the reason for the statutory requirement of notice is to give notice to residents of the proposed park district territory of a referendum to establish a new park district. The form of the notice contained in section 28—2 states that “a petition will or has been filed * * * This language is an indication of legislative intent that the petition may be filed before the publication. In the case at bar, at the time the petition was filed on November 4, 1980, there was an affidavit attached signed by David Haraburda which stated that “on or about November 4, 1981, being the 131st day before the March 6, [sic] 1982 election, the affiant hereby has caused the notice of intention to file a petition for the formation of a new park district to be known as the Greater Algonquin Park District to be published in The Cardunal Free Press * * The record further shows that a publisher’s certificate was filed on November 18, 1981, certifying that the notice was published on November 6, 1981. We find that the filing of the petition with the Haraburda affidavit and the subsequent filing of the publisher’s certificate of publication were in substantial compliance with the aforementioned statutes. “ ‘Substantial and not literal compliance with technical requirements of election laws seems to be a general rule.’ ” Havens v. Miller (1981), 102 Ill. App. 3d 558, 565, quoting 3 Sutherland, Statutory Construction §70.01, at 296 n.13 (4th ed. 1974); see also Lewis v. Dunne (1976), 63 Ill. 2d 48, 53, 344 N.E.2d 443.

Further, we do not conclude that The Cardunal Free Press was a newspaper failing to meet the statutory requirement contained in section 28—2 of being “a newspaper published within the proposed political subdivision, or if none, * 00 a newspaper of general circulation within the territory of the proposed political subdivision * * “.” First, it appears to have been admitted by counsel for one of the objectors at the hearing below that there was no newspaper published within the district. Thus the question remaining is whether The Cardunal Free Press was a newspaper of general circulation within the territory of the proposed park district. The affidavit of David Haraburda filed with the petition stated that The Cardunal Free Press was a newspaper of general circulation within the territory of the proposed new park district. The objectors did not contradict the truth of this affidavit in their objections, but instead, argue on appeal that the publisher’s certificate, filed later, states that the newspaper is “of general circulation regularly published in the city of Carpentersville in the county of Kane * * “.’’No proof was offered by the objectors at the hearing oh the objections that The Cardunal Free Press was not of general circulation within the proposed park district. Nor does the publisher’s certificate directly contradict Haraburda’s affidavit. Absent any evidence to the contrary, it can be concluded from the Haraburda affidavit and the publisher’s certificate that while the newspaper is published in Carpentersville, it is of general circulation in both Carpentersville and the proposed district. Under these circumstances, the unrebutted proof is sufficient to establish that The Cardunal Free Press is a newspaper of general circulation in the proposed park district and this objection cannot be sustained.

The objectors contend next that the notice of hearing caused to be published by petitioners was not in compliance with section 2—3 of the Park District Code (Ill. Rev. Stat. 1979, ch. 105, par. 2—3). They argue that a second publisher’s certificate which certifies to publication of the notice of hearing reveals again that the notice was published in The Free Press which is a newspaper of general circulation and published in Carpentersville, Kane County. Additionally, they argue that “An Act “ “ “ in relation to notices” (Ill. Rev. Stat. 1979, ch. 100, par. 1 et seq.) requires publication of the notice in a newspaper published within the particular unit of local government or if none, in a newspaper published in the county in which the unit of local government is located.

Section 2—3 of the Park District Code provides in pertinent part:

“An organization petition under Section 2—2 or 2—2.1 shall be filed in the office of the clerk of the circuit court of the county in which such proposed district, or the greater or greatest portion in area thereof, is situated together with a request that the circuit judge set a date and time for a public hearing thereon. The circuit judge shall fix a date and time, not less than 30 days nor more than 180 days after the date of filing of such petition and hearing request, for a public hearing on the subject of the petition. Notice of the time and place of such hearing shall be given by the clerk of the circuit court at least 20 days prior to the date fixed for such hearing by at least one publication thereof in one or more daily or weekly newspapers having a general circulation within the proposed park district.” (Ill. Rev. Stat. 1979, ch. 105, par. 2—3.)

It is evident from examination of this provision that the circuit clerk shall cause notice of the time and place of the hearing to be given in a daily or weekly newspaper “having a general circulation within the proposed park district.” While the second publisher’s certificate attested to publication of the notice of hearing on November 16, 1981, in The Free Press, a newspaper of general circulation in the city of Carpentersville, Kane County, we find, as concluded above, that there is unrebutted evidence that this newspaper is of general circulation in the proposed park district as well. Again, there was no evidence offered at the hearing which would contradict Haraburda’s affidavit that it was a newspaper of general circulation within the park district. Also, we find that “An Act * * * in relation to notices” is not applicable here, where the Park District Code specifies the method of publication as it does in section 2—3. The general provisions for notice under chapter 100 do not come into play where another statute is specific. Thus, we find substantial compliance with the notice of hearing requirement under section 2—3.

Although an examination of the trial court’s ruling indicates that the only reason stated for the dismissal of the petition was because of “defective publication,” we will review all the other objections raised below to determine if the court’s judgment can be sustained on any other legal basis. If correct, the judgment of the trial court may be sustained for reasons other than those relied upon by it. Shufelt v. City of Rockford (1980), 89 Ill. App. 3d 717, 719, 412 N.E.2d 4; U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 919, 410 N.E.2d 286.

Another objection to the petition is that it failed to have a proper certificate at the bottom of the petition in compliance with section 28—3 of the Election Code. (Ill. Rev. Stat., 1980 Supp., ch. 46, par. 28—3.) More specifically, the objectors argue that the certificate does not specify that the circulator is a registered voter of the district in which the question of public policy is to be submitted and that the signatures on the petition were signed in the circulator’s presence within the jurisdiction of the election authority where the person so certifying is registered to vote. We need not determine whether the certification here was in substantial compliance with that provision as we find that section 28—3 is inapplicable.

Section 28—1 of the Election Code (Ill. Rev. Stat., 1980 Supp., ch. 46, par. 28—1) provides, inter alia, as follows:

“The initiation and submission of all public questions to be voted upon by the electors of the State or of any political subdivision or district shall be subject to the provisions of this Article. * # ft
Whenever a statute provides for the initiation of a public question by a petition of electors, the provisions of such statute shall govern with respect to the number of signatures required, the qualifications of persons entitled to sign the petition, the contents of the petition, the officer with whom the petition must be filed, and the form of the question to be submitted. If such statute does not specify any of the foregoing petition requirements, the corresponding petition requirements Section 28—6 shall govern such petition.”

It is clear from this provision that if the statute providing for the initiation of a public question specifies the petition requirements, then it controls on these requirements over provisions of the Election Code. Turning to the Park District Code, we find that it does specifically provide for the number of signatures and qualifications of persons entitled to sign the petition (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—2), the contents of the petition (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—2), the officer with whom the petition must be filed (Ill. Rev. Stat. 1979 , ch. 105, par. 2—3), and the form of the question to be submitted. (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—5.) Therefore, section 28—3 of the Election Code, which provides generally for the contents of petitions, does not govern in the case at bar since the Park District Code provides more specific legislation on the same topic. It is a fundamental rule of statutory construction that where there exist a general statutory provision and a specific statutory provision, either in the same or another act, which both relate to the same subject, the specific provision controls and should be applied. (United States Steel Corp. v. Pollution Control Board (1978), 64 Ill. App. 3d 34, 43, 380 N.E.2d 909; Cook County Police & Corrections Merit Board v. Illinois Fair Employment Practices Com. (1978), 59 v. App. 3d 305, 308, 376 N.E.2d 11; Winston v. Mitchell (1977), 53 Ill. App. 3d 206, 212, 368 N.E.2d 460.) Section 2—2 of the Park District Code does not require a certification of the petition. Had the legislature intended that a petition to organize a park district contain the same requirements as a petition to submit other public questions it surely could have so provided. We further note that the legislature has specifically provided in the Park District Code that “[wjhenever a proposition or public question is required to be submitted, pursuant to this Act, for approval or rejection by the electorate at an election, the time and manner of conducting such referendum shall be in accordance with the general election law of the State.” (Emphasis added.) (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 1—5.) We believe the legislature intended to consolidate the time and manner of the many local and state elections by this provision, but left to each specific statute the form and contents of the petition. Thus wé conclude that the certification provisions of section 28—3 of the Election Code are inapplicable to the petition filed herein.

The objectors also contend that the petition fails to reasonably inform the voters of its contents and that the legal description contained therein is deficient. No cases have been cited by the objectors as authority for these objections. Nevertheless, we have examined the petition and find that it meets the principal requirements set out in section 2—2 of the Park District Code (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2—2) which require the petition to clearly define the territory intended to be embraced in such district and the name of the proposed district.

The petition describes the territory by metes and bounds. In addition it specifies that the territory “is contiguous territory and lies within the county of McHenry” and “closely approximates the community served by Algonquin, Illinois.” The petition further states that it is for the organization of the Greater Algonquin Park District. We conclude the petition is in substantial compliance with the statutory requirement.

Finally, the objectors contend that at the time the petition was filed no written request to set a date and time for a public hearing accompanied the petition thus invalidating the petition pursuant to section 2—3 of the Park District Code. (Ill. Rev. Stat. 1979, ch. 105, par. 2—3.) Section 2—3 provides:

“An organization petition under Section 2—2 or 2—2.1 shall be filed in the office of the clerk of the circuit court of the county in which such proposed district, or the greater or greatest portion in area thereof, is situated together with a request that the circuit judge set a date and time for a public hearing thereon. The circuit judge shall fix a date and time, not less than 30 days nor more than 180 days after the date of filing of such petition and hearing request, for a public hearing on the subject of the petition. Notice of the time and place of such hearing shall be given by the clerk of the circuit court at least 20 days prior to the date fixed for such hearing by at least one publication thereof in one or more daily or weekly newspapers having a general circulation within the proposed park district.
If no request for a hearing accompanied the petition or if a hearing on the petition has not been held within the time required by this Section, such petition shall be void and shall be dismissed by the circuit judge.”

From our examination of the record, there is no written request or other notation of a request for a hearing date. However, it is evident that a hearing was held on December 7,1981, which was continued for a further hearing and decision on December 10, 1981. These hearings were held within the time prescribed in section 2—3, and the objectors filed their objections and were heard thereon. The relevant statute does not mandate a written request for a hearing, and we can infer from this record that an oral request must have been made since a hearing date was set. As the objectors can show no prejudice from the procedure followed, we find the statute has been complied with.

An additional question raised on this appeal by the petitioners is the standing of certain objectors to file objections to the petition in the circuit court. Petitioners contend that section 10—8 of the Election Code requires that, in order to file an objection to such a petition, the person must be a “legal voter of the political subdivision or district in which the * * * public question is to be voted on * * (Ill. Rev. Stat. 1979, ch. 46, par. 10—8.) However, we reject petitioner’s contention that section 10—8 controls, since section 28—4 of the Election Code limits the further applicability of sections 10—8 to 10—10.1 to “questions of public policy required to be filed with local election officials and election authorities, and to petitions for advisory questions of public policy required to be filed with the State Board of Elections 0 * (Ill. Rev. Stat., 1980 Supp., ch. 46, par. 28—4.) In the case at bar, the Park District Code specifies that a petition to organize a park district shall be filed in the office of the clerk of the circuit court. We find no provision in either the Election Code or the Park District Code which specifies the legal status one must have in order to file an objection to a petition for formation of a park district. Considering the differences between organization of a park district and nomination of persons for public office under the Election Code, it would appear that the interest necessary to file objections to a petition to organize a park district should not be restricted to only “legal voters.” (See, e.g., In re Organization of Byron Park District (1978), 67 Ill. App. 3d 61, 385 N.E.2d 67.) We find here that the statements of interest contained in the objections are sufficient to entitle all the objectors to object to the formation of the district. The objection filed by the village of Lake in the Hills stated that portions of the proposed park district are either already part of the village or in the process of being annexed. All the other objections were by either legal voters within the proposed district or owners of legal title of real property or beneficiaries of trusts owning real property within the proposed district. We deem these interests sufficient since formation of a park district may have tax consequences upon the owners of real property located within the proposed district. Similarly, we belieye that the village of Lake in the Hills as a municipality has articulated a sufficient interest in that it alleges that a portion of its boundaries are within the proposed district.

For the foregoing reasons, we reverse the trial court’s order dismissing the petition and we remand with directions to hold a hearing to determine whether the boundaries as defined in the petition are reasonable boundaries for the formation of a park district.

Reversed and remanded with directions.

HOPF and NASH, JJ., concur.

       We have concluded from this record that The Free Press and The Cardunal Free Press are the same newspaper.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BONE, Defendant-Appellant.
    Third District
    No. 81-44
    Opinion filed February 24, 1982.
    Rehearing denied March 18, 1982.

      Robert Agostinelli and Michael Filipovic, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Steven G. Bone, appeals from his convictions of intentional murder, felony murder and armed robbery following a jury trial in the circuit court of Peoria County. (Ill. Rev. Stat. 1979, ch. 38, pars. 9—1(a)(2), 9—1(a)(3), 18—2.) He was sentenced to a 40-year term of imprisonment for murder and a concurrent 20-year term for armed robbery.

On appeal, the defendant contends that one of his two murder convictions must be vacated and his cause remanded for resentencing, because both offenses were carved from the same physical act. The defendant also asserts that a resentencing hearing is mandated, since the trial judge considered as factors in aggravation the fact that the defendant received compensation and the fact that the defendant’s conduct caused or threatened serious harm.

Only a brief summary of the facts adduced at trial is necessary. On August 17, 1981, at 8:45 p.m., the defendant entered the Appollo gas station in Peoria, Illinois. There were two cash registers in the station. Standing at one of them was Terry Hall, the murder victim, and at the other was State’s witness, Cheryl Gruss. Also present in the station were Thomas Turner, a cousin of Cheryl Gruss, and Raymond Dutlinger, a customer.

According to stipulations filed by Turner and Dutlinger and the testimony of Cheryl Gruss, the defendant approached Hall, who asked, “May I help you?” The defendant replied “Yes” and then shot Hall with a handgun. The defendant had both hands on his gun and his legs were spread as the gun discharged.

The defendant then demanded that Cheryl Gruss give him the money in the registers. She handed him the money from both registers and managed to push an alarm button at the same time. Before leaving the station, the defendant warned Miss Gruss that he knew what she looked like and would come back to get her if she told anyone about the robbery. (While awaiting trial, the defendant attempted to make good on this threat by soliciting a fellow inmate at the Peoria County jail to murder Cheryl Gruss.) The defendant was apprehended by the police a short time after leaving the Appollo gas station.

The defendant, at the conclusion of his trial, was found guilty of two counts of murder and tw.o counts of armed robbery. Judgments of conviction were entered by the trial court on both counts of murder, but on only one count of armed robbery. Although one murder conviction was based on an “intentional” murder theory (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a) (2)), and the other based on a felony-murder theory (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a) (3)), they both arose from a single physical act— the killing of Terry Hall.

Clearly, one of defendant’s murder convictions must be vacated, since a defendant cannot be convicted of more than one offense arising out of the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Where multiple convictions have been entered erroneously, the less serious, or “included,” offense(s) will be vacated. (See People v. Whitaker (1980), 87 Ill. App. 3d 563, 566, 410 N.E.2d 166, 171.) By definition, an “included” offense is one which is established by proof of a less culpable mental state than that which is required to establish the commission of another crime charged. Ill. Rev. Stat. 1979, ch. 38, par. 2—9(a).

In the instant case, the defendant’s two murder convictions are equally serious class X offenses. Of the two, however, the more culpable mental state is that which is required for a conviction of “intentional” murder.

The relative culpability of the three classifications of murder in Illinois (Ill. Rev. Stat. 1979, ch. 38, pars. 9—1(a)(1) through (a)(3)) is discussed in detail in the Committee Comments to this section of the Criminal Code of 1961. (Ill. Ann. Stat., ch. 38, par. 9—1, Committee Comments, at 12 et seq. (Smith-Hurd 1972).) The Committee there observes that “[sjubsection (a)(1) is intended to define the two most culpable types of conduct.” Subsection (a)(1) requires proof of a defendant’s “actual intent” to kill or do great bodily harm. Subsection (a)(2), by comparison, requires proof that a defendant “know” that his acts create a “strong probability” of death or great bodily harm. The relative culpability of this latter classification lies between the “actual intent” offense (subsection (a)(1)) and felony murder, an “implied intent” offense (subsection (a)(3)). In fact, a felony-murder conviction may obtain in Illinois “whether the killing * * * is intentional or accidental, or is committed by a confederate without the connivance of the defendant.” Analogizing to tort law, it may be said that the three murder classifications in Illinois are roughly comparable to intentional torts, negligence, and strict liability, respectively.

For purposes of felony (armed robbery) murder, there is no requirement that the State prove a mental state element for the underlying offense. (People v. Hawkins (1973), 14 Ill. App. 3d 549, 302 N.E.2d 128.) Thus, no mental state element as such need be proved to obtain the felony-murder conviction. (See People v. Gulliford (1980), 86 Ill. App. 3d 237, 407 N.E.2d 1094.) The defendant is held strictly liable for felony-murder upon proof of the armed robbery. By contrast, the State is required to prove beyond a reasonable doubt that the defendant knew “that such acts create a strong probability of death or great bodily harm” (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(2)) in order to obtain a conviction under the second classification of murder as defined in Illinois. The presence of the mental state element in the latter classification renders more culpable a subsection (a) (2) offense than a subsection (a) (3) offense, for which no mental state element exists. In sum, it appears that, on the basis of criminal culpability, the defendant’s felony (armed robbery) murder conviction herein is an “included” offense and his conviction therefor must be vacated. See People v. Robinson (1969), 106 Ill. App. 2d 78, 246 N.E.2d 15 (of defendant’s two murder convictions under subsections (a)(1) and (a)(2), the appellate court vacated the (a)(2) conviction); People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181 (of defendant’s two murder convictions under subsections (a) (1) and (a) (3), the trial court vacated the (a)(3) conviction).

Because we are unable to discern to what extent the felony murder conviction may have influenced the trial court in arriving at its sentencing decision, if at all, we vacate the defendant’s murder sentence and remand the cause for a new sentencing hearing. (People v. Davis (1981), 95 Ill. App. 3d 161, 419 N.E.2d 682; People v. Smith (1976), 44 Ill. App. 3d 663, 358 N.E.2d 736.) The State’s argument that this'cause need not be remanded for a resentencing hearing in light of the vacatur of one of the defendant’s two murder convictions, because the trial judge imposed a single sentence of imprisonment on both convictions, cannot persuade. Great deference is accorded the trial judge in matters of sentencing, and we cannot say with certainty on the basis of the record before us that the trial judge would have imposed the same sentence (40 years) had he entered only one judgment of conviction for murder.

In People v. Guppy (1975), 30 Ill. App. 3d 489, 333 N.E.2d 576, this court ordered a remandment for resentencing even though the defendant received only a single sentence for all of his convictions, some of which were vacated on appeal. In remanding for a new sentencing hearing, this court stated:

“We believe that where one sentence was imposed on all counts, and some of those counts were invalid, the cause should be remanded for a reconsideration of sentence by the trial court, even though 3 years’ probation is not an inappropriate sentence on the 10 counts which were valid convictions. We therefore vacate the sentence and remand with directions to hold a new hearing for resentencing the defendant.” (30 Ill. App. 3d 489, 496, 333 N.E.2d 576, 581-82.)

The instant case likewise requires a remandment for resentencing following our vacatur of the defendant’s felony-murder conviction.

Furthermore, the record discloses that the trial court considered as a factor in aggravation the fact that the defendant received compensation. (Ill. Rev. Stat. 1979, eh. 38, par. 1005—5—3.2(a)(2).) This factor is implicit in the defendant’s convictions for both armed robbery and felony (armed robbery) murder. As such, it may not, of course, be considered in determining the severity of sentence to be imposed for either of said offenses. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Since we cannot determine how much weight the trial court gave to this factor in determining the defendant’s sentence for armed robbery, we vacate the defendant’s armed robbery sentence and remand this cause for resentencing as well.

The defendant also contends that the trial judge improperly considered as a statutory factor in aggravation that his conduct caused or threatened serious harm. (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—3.2(a)(1).) The defendant argues that since the threat or causation of serious harm is implicit in both his murder convictions, the trial judge improperly considered this factor pursuant to People v. Conover. However, as this court stated in People v. Hert (1981), 95 Ill. App. 3d 871, 420 N.E.2d 813, the degree of harm is relevant in sentencing the defendant for a crime in which the threat or causation of serious harm is implicit. Thus, the degree of harm caused to the victim, Terry Hall, i.e., his death, is a proper factor for consideration in sentencing the defendant for the armed robbery conviction.

The defendant relies on People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254, in support of his contention that the trial judge improperly considered the fact that his conduct caused serious harm as an aggravating factor. The defendant’s reliance upon Allen is misplaced. In Allen, the trial court found that the defendant’s conduct in committing a burglary threatened harm to the defendant himself and possibly to police officers who interrupted the offense. The reviewing court held that the trial court had improperly considered the factor of a threat of harm, because the possibility of harm to the perpetrator of an offense and to the police officers who intervene is implicit in every burglary. This situation is clearly distinguishable from the case at bar, in which the trial judge considered the actual harm to the service station attendant during the course of the armed robbery and not the threat of harm to either the defendant or a police officer. Given the totally senseless act which the defendant’s murder of Terry Hall constituted, we cannot say that the trial court erred in considering the harm caused to the victim during the course of the armed robbery.

For the foregoing reasons, the defendant’s felony-murder conviction is vacated, the remaining murder and armed robbery convictions are affirmed, the defendant’s sentences for both murder and armed robbery are vacated, and this case is remanded to the circuit court of Peoria County for resentencing consistent with this opinion.

Judgments affirmed in part, vacated in part, and remanded for resentencing.

SCOTT, P. J„ and HEIPLE, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    SHERIDAN B. JONES, Plaintiff and Counterdefendant-Appellant, v. HUBERT M. HENDRICKS et al., Defendants and Counterplaintiffs-Appellees.—(ROY MERRILL et al., Defendants.)
    Fourth District
    No. 17270
    Opinion filed February 4, 1982.
    Modified on denial of rehearing March 17, 1982.

      Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, for appellant.
    Robert A. Jones, of. Rushville, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

After a bench trial in the circuit court of Brown County of a suit as to a disputed boundary, the court entered a declaratory judgment on February 9, 1981, in favor of defendants, Hubert M. Hendricks and Marilyn Joyce Hendricks, and against plaintiff, Sheridan B. Jones. The judgment declared that the boundary line between properties owned by the parties was a line described in the evidence as the center line of an old township road and that defendants were the owners of a tract north of that road and south of the true boundary line between the properties. Plaintiff appeals. We reverse.

Defendants’ claim was based upon the alternative theories of adverse possession and the existence of a boundary line expressly or impliedly agreed upon by the parties or their predecessors and which now estops plaintiff.

The undisputed evidence was that the area in question between the old township road and the true boundary line was subject to a life estate in plaintiff’s mother, Evelyn Padgett, from at least 1939 until 1976 when she conveyed her life estate to plaintiff. The “bodily heirs” of Evelyn Padgett had vested remainders. Since plaintiff is a member of that class, he had a vested remainder interest in the property as well as a life estate pur autre vie. No evidence was presented of adverse possession of the tract before 1939. When adverse possession does not commence prior to the creation of a life estate, the statute of limitations does not run against the remainder interests during the life estate. (Melliere v. Kaufmann (1968), 93 Ill. App. 2d 242, 236 N.E.2d 147.) Thus, no adverse possession against the remainder interests could have begun before suit was filed. Accordingly, the theory of adverse possession does not support the judgment.

Addressing defendants’ alternative theory, we note that the evidence fails to show any express boundary line agreement at any time. The question of whether there was an implied agreement is more complex.

In McLeod v. Lambdin (1961), 22 Ill. 2d 232, 235, 174 N.E.2d 869, 871, it is stated:

“Where a boundary between two tracts is unascertained or in dispute, the line may be established, first by parol agreement and possession; second, by an agreement implied from unequivocal acts and declarations of the parties and acquiescence for a considerable period of time; and third, in the absence of any agreement, by undisturbed possession for more than twenty years. When an unascertained or disputed boundary is actually established under either or all of these alternative methods, it will be binding on the parties and their privies in estate and may be enforced or protected in an appropriate action in equity.”

The foregoing theory was further clarified in Ginther v. Duginger (1955), 6 Ill. 2d 474, 482, 129 N.E.2d 147, 151:

“[T]his rule also applies only where there is a dispute as to the line or where the line is unascertained. If the line is not in dispute and the intention of the parties is merely to determine the exact or true line, and in so doing an erroneous line is agreed upon by accident or mistake, the agreement will not be binding and the line will not be established merely because of the agreement previously entered into between the parties. In such a case there is a failure to find the true line through accident or mistake and not an agreement to adopt an unascertained or disputed line; hence the same rule does not apply with reference to possession, estoppel, etc.”

In both McLeod and Ginther there was a clear and unequivocal basis for establishing the situs of the boundary line, and both cases involved clear and unequivocal possession or acquiescence.

Initially we state our belief and hold that, just as adverse possession must have commenced prior to the creation of a life estate to run against the remainder, so must an agreement, explicit or implied, to establish a disputed or unascertained boundary, accompanied by possession or acquiescence, exist prior to the creation of the life estate to affect the remainder interest. The adverse possession limitation is based upon the rationale that the remainderman has no right to possession and therefore cannot bring an action to protect his interest against adverse possession. Similarly, the remainderman cannot depend upon the life estate holder to protect his interests against a boundary line agreement. The remainder-man cannot bring an action to challenge any boundary line agreement made by and acquiesced in by the life estate holder.

It is basic property law that a life estate holder cannot convey a greater interest in the property than is possessed by the life estate holder. (Miller v. O’Neil (1977), 47 Ill. App. 3d 340, 361 N.E.2d 1165.) Although the effect of the boundary line agreement rule is not to convey title to the real estate from one party to the other, which cannot be done by parol, the express or implied agreement is valid for the purpose of fixing the location of an unascertained or disputed boundary. (Purtle v. Bell (1907), 225 Ill. 523, 80 N.E 350.) Since the effect is the same, the life estate holder should no more be able to affect the interests of the remainderman by an agreed boundary line than he should be able to through conveyance or adverse possession. Following the analogy to adverse possession, such a boundary line agreement should be binding upon the remainderman only if the person through whom the remainderman obtained his interest had made such an agreement and acquiesced therein prior to the creation of the life estate.

The only evidence even remotely relevant to a boundary line agreement prior to the creation of the life estate are statements of two witnesses concerning what was “considered” to be the boundary. Evelyn Padgett testified that she “just thought” the township road was the boundary line, although she did not really know where the line was until the land was surveyed. Another witness testified that the general community always considered the road to be the boundary line. There is no evidence that the boundary line was truly in dispute or unascertained. There is no evidence that previous owners of the properties agreed, explicitly or implicitly by unequivocal acts, upon the township road as a boundary line. There is no evidence of possession or acquiescence in accordance with any township road boundary line prior to the creation of the life estate. Therefore, defendants’ argument fails.

The judgment of the trial court fixing the boundary from the fence post at the center of the abandoned township road and running east is reversed. The cause is remanded to the circuit court of Brown County to enter an order defining the boundary line in accordance with the survey plat which appears as plaintiff’s exhibit No. 2 and declaring plaintiff the legal titleholder of certain property as legally described in paragraph 1 of plaintiff’s second amended complaint.

Reversed and remanded with directions.

LONDRIGAN and TRAPP, JJ„ concur.