text:
    COUNTRY COMPANIES, Plaintiff-Appellant, v. JORDAN SCOTT BOURBON, a Minor, by Muriel Bourbon, his Father and Next Friend, Defendant-Appellee.
    Fifth District
    No. 82—586
    Opinion filed February 24, 1984.
    C. Patout Ducey, of Ducey, Feder & Ducey, Ltd., of Belleville, for appellant.
    Cook, Shevlin, Keefe and Chatham, Ltd., of Belleville (Bruce N. Cook and Mary Mansfield Brauer, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff insurance company appeals from an order entered in two cases that were consolidated for hearing and disposition. The order directed plaintiff to enter into arbitration of a claim made by defendant under the provisions of an uninsured motorist clause of a vehicle insurance policy issued to Robert Theis. The two cases consolidated were an action to compel arbitration commenced by Jordan Scott Bourbon, the injured claimant, herein to be referred to as defendant, and a suit by plaintiff insurance company seeking a declaratory judgment that no coverage was afforded by their policy for the incident and injury in question.

Plaintiff filed a motion for summary judgment in its declaratory judgment action, and it was denied. Plaintiff has evidenced some concern regarding the reviewability of an order denying a motion for summary judgment. However, since the evidence adduced in support of the summary judgment was also submitted in the declaratory judgment and petition to compel arbitration actions, we see no problem of reviewability in this case, especially in view of the fact that we affirm the order of the trial court. See Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352.

The facts are brief and undisputed. Defendant was a member of a group celebrating a birthday with a picnic at a public park. An unassociated group was also present in the park. This latter group provoked trouble and, in the end, threatened, and even attacked, members of the “picnic” group. Because of the threats and attacks, the “picnic” group left the park in haste in a pickup truck belonging to plaintiff’s insured, Robert Theis. There were 11 persons in the truck. As they left the park they were cursed, threatened and then pursued by the troublemakers. Pursuit was by a car and a motorcycle. The group in the truck was terrorized by this time, and a coherent relation of events was difficult. Nevertheless, the parties agree that the pickup truck was traveling at high speed, at times up to 80 miles per hour, in an attempt to evade the pursuers. There was some bumping between the pursing car and the truck before the car broke off pursuit. However, the motorcyclist did not abandon pursuit. Armed with a baseball bat, he pulled alongside the truck and attempted to hit the driver of the truck. In one such attempt he missed the driver and hit and smashed the outside rearview mirror. All this occurred likewise at a high rate of speed. Immediately after the mirror-smashing incident, the motorcyclist pulled a distance ahead of the truck, turned around and drove directly at the truck in the truck’s lane of travel. Mr. Theis stated that the headlight of the motorcycle completely blinded his vision. In making an attempt to evade the motorcycle, the pickup truck left the highway and turned over three times. Injured bodies were “scattered everywhere,” and the motorcyclist rode away. Defendant was in the back of the truck and was thrown out when the truck overturned, receiving the injuries that are the concern of these lawsuits.

Two issues are presented for review: (1) was the accident in which defendant was injured proximately caused by physical contact between the pickup truck and an uninsured vehicle, and (2) did the obviously intentional and criminal acts of the motorcyclist and the driver of the automobile constitute an “accident” within the meaning of the applicable provisions of the insurance policy?

It is plaintiff’s contention that because of statements contained in the deposition of defendant, the trial court should have rendered summary judgment for plaintiff. That contention is pursued before this court. Defendant stated that the truck in which he was a passenger had skidded off the road because it was traveling at too great a speed and that there had been nó physical contact between the truck and any other vehicle prior to the accident. Plaintiff also points to the statement of Robert Theis on deposition that he lost control of his truck.

Provision is made for protection for injuries caused by uninsured and unknown motorists by section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a). The insurance policy issued by the plaintiff to Robert Theis contains an uninsured motorist section which is responsive to the requirements of the statute. Relevant portions of the policy are as follows:

“Section II — protection against bodily injury by uninsured vehicles.
To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an Uninsured Vehicle because of bodily injury, including death resulting therefrom, hereinafter called “bodily injury”, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such Uninsured Vehicle ***.
‘Uninsured Vehicle’ means:
(1) a vehicle with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or bodily injury liability insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or,
(2) a vehicle where on, prior to or after the accident date the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified in the policy because of the entry by a court of competent jurisdiction of an order of rehabilitation or liquidation by reason of insolvency on or after the accident date, or.
(3) a hit-and-run vehicle as hereinafter defined ***..
‘Hit-and-Run Vehicle’ means:
a vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident ***.”

In Finch v. Central National Insurance Group (1974), 59 Ill. 2d 123, 319 N.E.2d 468 and Ferega v. State Farm Mutual Automobile Insurance Co. (1974), 58 Ill. 2d 109, 317 N.E.2d 550, the supreme court held that a requirement of physical contact between the vehicle of the insured and that of the uninsured or unknown driver could be a valid provision of an insurance policy issued to comply with section 143a of the Illinois Insurance Code. The rule of those cases has been adhered to in all subsequent decisions, and we recognize them as controlling of the issues in this case.

While the plaintiff concedes that there was at one time physical contact between the vehicles involved, it argues that the ultimate accident was not the proximate cause of that physical contact. The plaintiff would have us limit our consideration of the coverage issue to the events that followed the smashing of the mirror by the motorcyclist. In particular, plaintiff asks that we make cardinal note of the fact that after the smashing of the mirror, the motorcyclist sped ahead of the truck, turned around, and drove directly at the truck with blinding lights. This last in a series of events caused the driver of the truck, with no physical contact between the two vehicles, to leave the highway and overturn. The plaintiff reasons that since the driver of the truck remained in full control following the mirror-smashing incident, he drove off the highway and overturned not because of any physical contact between the vehicles, and, therefore, under the Finch and Ferega cases, there is no liability to the defendant under the uninsured motorist section of its policy.

Plaintiff’s interpretation of the accident and the other events that immediately preceded it is too narrow and constricted. Under the circumstances that pertain, we view the incident as but one episode rather than as a series of unrelated, separable incidents. From the time the truck left the park until it overturned alongside the highway, there was a direct line of causal events, occurring over a short span of space and time, that were directly involved, interrelated and ongoing without interruption, which culminated with the overturning of the truck. Integral parts of that event were the bumping between the truck and the car and the smashing of the mirror by the motorcyclist. These incidents furnished the physical contact necessary to defendant’s recovery. We think that our determination that the accident in question arose out of the physical contact between the vehicles is within the letter, the spirit and the purpose of the uninsured motorist act and that plaintiff is properly held to arbitration as provided in its policy. We would emphasize that this is not a case of constructive contact or one in which phantom vehicles were involved, and, therefore, the result we reach does not contravene any public policy designed to dissuade spurious claims.

Since the actions of the motorcyclist and the driver of the car were intentional and criminal, can it be said that the physical contact we have described was not an “accident” as that term is used in section 143a of the Illinois Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a) and the applicable policy provision that provides coverage for “accidents”?

This problem was recently addressed, but not directly decided, by the Illinois Appellate Court in Curtis v. Birch (1983), 114 Ill. App. 3d 127, 448 N.E.2d 591. In that case plaintiffs brought an action to recover damages resulting from the shooting death of their sister by the defendant. The victim was a passenger in one car and was shot by a driver of a second car who was alleged to be uninsured within the terms of the Illinois uninsured motorists statute. One of the defenses was that there was no “accident” within the purview of the statute. In considering the issue the court noted its inability to find any indication that the legislature anticipated or intended that the liability of an insurer be for intentional criminal conduct, such as that involved before the court. The court also noted that the plaintiffs had cited no Illinois authority. The court stated:

“Those few cases which have allowed an insured to recover, under an uninsured motorist’s provision of an auto insurance policy for intentional acts of the uninsured or unknown driver, involved injuries caused by the use of the auto as the instrumentality of the resultant injuries. (See Annot., 72 A.L.R.3d 1161, 1164-68 (1976).)” Curtis v. Birch (1983), 114 Ill. App. 3d 127, 131, 448 N.E.2d 591, 595.

In deciding the issue before it, the court in the Curtis case, citing Finch v. Central National Insurance Group, noted that Illinois courts have consistently held that some direct contact between the insurer’s vehicle and that of the uninsured or unknown driver is a condition precedent to establishing liability pursuant to section 143a of the Illinois Insurance Code. The Curtis court then found that there was no contact between vehicles; rather, the instrumentality of the victim’s injury was a handgun. The court reasoned that inasmuch as the assailant could have carried out his intention from a bicycle or on foot, the fact that the assailant was in a car at the time was merely incidental. Accordingly, the court found that there was no uninsured motorist coverage available to the plaintiff.

We have examined the annotation in A.L.R.Sd cited by the court in the Curtis case. We think it especially relevant to the case under consideration because we have found that there was direct contact between the vehicles involved and that the contact was both intentional and criminal.

The issue addressed in the A.L.R.Sd annotation was:
“Does such [an uninsured motorist] provision afford coverage for injuries sustained by the insured as the result of intentional conduct, such as an assault, by an uninsured motorist?” (Annot., 72 A.L.R.Sd 1161, 1164 (1976).)

The annotation presents cases that have reached different conclusions on the issue. Cases in which coverage was denied were limited to New York and mostly involved actions by motorists against a State corporation established for the purpose of furnishing protection to persons injured in accidents caused by uninsured motorists. The reasoning in those cases, which need not be further cited here, was .that an intentionally inflicted injury would not constitute an “accident” and therefore would not entitle the claimant to recover under 'fhe-statutory scheme, which was designed to compensate for injuries received in accidents caused by uninsured motorists.

Other courts, notably those of Florida (Leatherby Insurance Co. v. Willoughby (Fla. App. 1975), 315 So. 2d 553, Ohio (Celina Mutual Insurance Co. v. Saylor (1973), 35 Ohio Miss. 81, 301 N.E.2d 721, .anti Oregon (Davis v. State Farm Mutual Automobile Insurance Co. (1973), 264 Or. 547, 507 P.2d 9) (interpreting Michigan law) have reached a contrary result. In summarizing the cases allowing recovery the annotation states:

“In these cases, the courts reasoned, either expressly or by apparent implication, that the purpose of uninsured motorist coverage is to protect innocent victims who have been injured by financially irresponsible motorists, so that such coverage resembles an accident policy for the victim. Accordingly, the courts in these cases held that the question of whether or not an injury is accidental, and thus within the coverage of the policy, must be determined from the victim’s standpoint, and that from this point of view the injury, although inflicted intentionally, fell within the protection afforded by the policy.” (Annot., 72 A.L.R.3d 1161, 1164 (1976).)

As the court in the Oregon case observed:

“Whether the occurrence is accidental depends entirely upon the point from which the question is viewed. If the occurrence is looked at from the point of view of the person who inflicts the harm or of his liability insurer, it is intentional. On the other hand, if it is looked at from the victim’s standpoint, it is unforeseen, unintended, unexpected, and has every aspect of an accident as long as the occurrence was not provoked.” Davis v. State Farm Mutual Automobile Insurance Co. (1973), 264 Or. 547, 550, 507 P.2d 9, 10.

Upon consideration we think the better rule to be that which considers the injury from the standpoint of the victim, rather than that which centers upon a characterization of the actions of an uninsured or unknown motorist as intentional or accidental. Such result is more in keeping with the spirit and purpose of the uninsured motorist statute, which is, after all, designed to furnish protection to persons injured by uninsured or unknown motorists. Thus, when viewing the incident we have related from the standpoint of the defendant, there can be no doubt that insofar as he was concerned it was indeed an accident, despite the fact that the injuries he received were the result of an intentional and criminal act. This result is not contrary to Curtis v. Birch because of the fact that that case was decided on the basis of “no physical contact.”

For the foregoing reasons we affirm the order of the trial court which directed plaintiff to enter into arbitration with defendant.

Affirmed.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH

license: Public Domain

text:
      In re OBJECTION OF LINDA LOU COOK TO REFERENDUM PETITION OF MARJORIE PIERCE (Linda Lou Cook, Appellant, v. Marjorie Pierce, Appellee).
    Fifth District
    No. 5-83-0303
    Opinion filed March 2, 1984.

      Edward C. Eberspacher III, Special Assistant State’s Attorney, of Dove & Dove, of Shelbyville, for appellant.
    Joel R. Monarch and Daniel R Madden, both of Chicago, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Linda Lou Cook, the supervisor of assessments for Shelby County, Illinois, brought this action to challenge the constitutionality of a petition for a referendum to make her position elective instead of appointive. She appeals the April 12, 1983, judgment of the circuit court of Shelby County upholding a decision of the Shelby County electoral board in favor of Marjorie Pierce, principal proponent of the referendum. Three issues are presented for our review. First, was the office of supervisor of assessments created by the legislature pursuant to revenue provisions of the Illinois Constitution (Ill. Const. 1970, art. IX, secs. 4(a), (7)) and therefore not subject to change by county referendum or pursuant to local government provisions (Ill. Const. 1970, art. VII, secs. 4(c), (7)) which would make the office subject to change by referendum? Second, should a change of venue have been granted because several members of the electoral board had a history of political conflicts with the supervisor? Finally, did the board’s method of authenticating signatures constitute reversible error?

The supervisor’s primary contention on appeal is that her office was created by the General Assembly pursuant to the revenue provisions of the Illinois Constitution of 1970 and, therefore, the office may not be made elective by referendum. (Ill. Const. 1970, art. IX, secs. 4(a), (7).) Cook offers four arguments in furtherance of this position. First, she asserts that express language in the Illinois Constitution shows her position is part of a statewide system designed for the uniform assessment of real estate and is not merely a county office subject to change by referendum under the Illinois Constitution of 1970, article VII, section 4(c). Second, she argues that the legislature as well as the delegates to the 1970 Illinois constitutional convention intended the supervisor of assessments to be part of a statewide uniform assessment plan. Third, Cook reasons that her position is analogous to the officers of clerk of the circuit court and State’s Attorney, which are not seen as county offices. Finally, the supervisor contends that the legislature has the exclusive power to provide for the creation of the office and method of selecting the supervisor of assessments.

The supervisor relies on two provisions of the Illinois Constitution of 1970 in contending that the office of supervisor of assessments is part of a statewide revenue system and not merely a county office. First, she cites article IX, which provides that “*** taxes upon real property shall be levied uniformly by valuation ascertained as the General Assembly shall provide by law.” (Ill. Const. 1970, art. IX, sec. 4(a).) The supervisor reasons that this provision illustrates a plan of uniform assessment of real estate, with her office designed by the General Assembly in furtherance of this plan. (Ill. Rev. Stat. 1981, ch. 120, par. 484a.) In addition, she relies on article IX, which provides, “The General Assembly may provide by law for fair apportionment of the burden of taxation of property situated in taxing districts that lie in more than one county.” (Ill. Const. 1970, art. IX, sec. 7.) She contends that the allowance of paragraph seven for multicounty taxing districts also provides evidence of a statewide plan for gathering revenue. See also Ill. Rev. Stat. 1981, ch. 120, pars. 484a, 484a. 1.

However, section 4(c) of article VII of the Illinois Constitution permits county voters to change the manner of selecting any county officer, as follows:

“Each county shall elect a sheriff, county clerk and treasurer, and may elect or appoint a coroner, recorder, assessor, auditor and such other officers as provided by law or by county ordinance. *** Any office may be created or eliminated and the terms of office and manner of selection changed by county-wide referendum. Offices other than sheriff, county clerk and treasurer may be eliminated and the terms of office and manner of selection changed by law. Offices other than sheriff, county clerk, treasurer, coroner, recorder, assessor and auditor may be eliminated and the terms of office and manner of selection changed by county ordinance.” (Emphasis added.) (Ill. Const. 1970, art. VII, par. 4(c).)

None of the language relied on by the supervisor establishes that this paragraph does not mean what it plainly states, i.e. that the manner of selection of most county officials may be changed by countywide referendum.

Ms. Pierce also rebuts the supervisor’s assertion that legislators and drafters of the constitution intended the office to be part of a statewide scheme under the revenue article. Pierce correctly notes that the legislature need not label the authority it exercises and may act pursuant to two or more powers simultaneously. (See National Drag Racing Enterprises, Inc. v. Kendall County (1972), 54 Ill. 2d 83, 295 N.E.2d 712.) In any event, the provisions of article VII, section 4(c) are written as a limitation of legislative power and expressly allow county voters to change the manner of selection of county offices. Ill. Const. 1970, art. VII, sec. 4(c).

The third aspect of the supervisor’s constitutional argument is that her position is analogous to the offices of clerk of the circuit court and State’s Attorney, which are not considered county officials (Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, 290 N.E.2d 886; People v. Thompson (1980), 88 Ill. App. 3d 375, 410 N.E.2d 600). We find the supervisor’s analogies to these offices to be inapposite. Although we have already stressed the need for the supervisor of assessments to remain free from interference by county officials (Heller v. County Board (1979), 71 Ill. App. 3d 31, 388 N.E.2d 881), the importance of a judicial system free from local interest is far more compelling than any interest present in the case at bar.

Finally, the supervisor asserts that only the legislature may provide for the creation of the office and method of selecting the supervisor of assessments. She relies on article IX, section 1, of the Illinois Constitution of 1970, which provides that the General Assembly has the exclusive power to raise revenue except as limited or provided by other provisions of the constitution. (Ill. Const. 1970, art. IX, sec. 1.) We note, however, that the legislature designed the office of supervisor of assessments in the manner it found fit. (Ill. Rev. Stat. 1981, ch. 120, par. 484a.) Moreover, the language of section 4(c) of article VII, allowing local voters to alter the manner of selection of county offices, is a clear limitation on the office, as provided for by the terms of article IX, section 1, itself. Ill. Const. 1970, art. VII, sec. 4(c), art. IX, sec. 1.

In short, the supervisor’s constitutional argument is unpersuasive. She cites no authority or reason which convinces us that paragraph 4(c) of article VII does not allow for the manner of selection of “other offices,” including the supervisor of assessments, to be changed by countywide referendum. Ill. Const. 1970, art. VII, sec. 4(c).

Next, we turn to the supervisor’s argument that it was reversible error for the Shelby County electoral board to deny her motion for a change of venue. The three members of the board were Cir'cuit Judge Vernon L. Plummer II, county clerk Dwight Campbell and State’s Attorney R. Glen Wright. The supervisor’s venue change motion alleged that each of the three were biased against her. The board held a hearing on the motion on September 1, 1982, and each of the three members decided he was not biased against the supervisor. In the trial court, the supervisor’s petition reiterated her specific allegations. She asserted that Dwight Campbell was prejudiced against her because his wife was one of the signers of the petition and he was a political adversary of hers, supported by the Shelby County Real Property Taxpayers’ Association. The supervisor argued that Circuit Judge Vernon L. Plummer II was prejudiced against her because his brother-in-law and sister-in-law had signed the petition, because her counsel defeated Judge Plummer in the 1976 State’s Attorney’s race and because Judge Plummer and his wife had represented many members of the Shelby County Real Property Taxpayers’ Association in related litigation. Finally, she asserted that State’s Attorney R. Glen Wright was prejudiced against her because he opposed and defeated her attorney in the 1980 State’s Attorney’s election, with the support of the members of the taxpayers’ group.

The trial court rejected the supervisor’s venue challenge in its order of April 12, 1983, for two reasons. First, the trial court pointed out that the statute creating the board and designating its composition (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 9(3)) does not provide any procedure for obtaining a change of venue. Second, the trial court stated that it had considered the nature of the challenges to each member and found the board’s decision to be correct. We agree with the trial court’s decision.

The statute provides for the substitution of electoral board members when a board member is a candidate for an office and nomination papers for that office are the subject of the board’s action. (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 9(7).) In addition, the Election Code allows for a candidate or objector aggrieved by the decision of an electoral board to secure judicial review in the circuit court of the county in which the hearing of the electoral board was held. (Ill. Rev. Stat. 1981, ch. 46, par. 10 — 10.1.) Given these protections, we hold that the objector did not have any implied right to a change of venue or substitution of judges. Moreover, the allegations of partisanship raised by the supervisor in her petition in the trial court are not sufficient to show reversible error. She directs our attention to no authority which requires an electoral board member to be disqualified from hearing a dispute because of past legal or political activity or conflicts. We decline her request to construe the Election Code to provide for different board members whenever an objector feels a conflict is present. It is not the province of the courts to inject provisions not found in a statute. Droste v. Kerner (1966), 34 Ill. 2d 495, 217 N.E.2d 73.

Finally, we consider the supervisor’s argument that the board’s method of authenticating signatures constituted reversible error. The board took a random sample of the signatures on the petition. Every third signature was examined, beginning by lot with the second signature. The signatures were compared to each person’s permanent registration card and 76 of the 1706 signatures were held invalid. Applying this ratio to the total number of the signatures, 228 signatures were rejected as invalid. A total of 1478 signatures were held valid, less than the 1497 signatures required by statute. The board then allowed petitioners to submit evidence from outside the permanent registration record cards to validate 17 of the invalid signatures. The supervisor contends that the recomputation of the number of valid signatures after hearing additional evidence was reversible error.

The outside evidence introduced to authenticate the signatures included affidavits and also precinct records from preceding elections. The supervisor objects to this evidence on appeal for several reasons. She contends that (1) these record were not the best evidence of the matters asserted, (2) many of the affidavits were notarized by a notary who signed the petition, (3) the records constituted hearsay, (4) the records denied her the right to cross-examine witnesses and (5) the record on appeal is incomplete because it does not contain copies of voter registration cards for those signatures to which objection was made but overruled.

We are not persuaded by the supervisor’s evidentiary objections. The rules of the Shelby County electoral board provide that the board “*** will generally follow rules of practice which prevail in the Circuit Court of Shelby County, Illinois, but because of the nature of these proceedings, the Board will not be bound by such rules in all particulars.” This rule means that board proceedings are not to be governed by the strict rules of evidence followed in the courtroom. Instead, the focus of such proceedings is on ascertaining whether the signatures on the petitions are in fact genuine. It has been held that election petitions will not be invalidated where substantial compliance with provisions of the Election Code is shown (Madden v. Schumann (1982), 105 Ill. App. 3d 900, 435 N.E.2d 173; Stevenson v. County Officers Electoral Board (1978), 58 Ill. App. 3d 24, 373 N.E.2d 1043), and certainly this principle applies to the supervisor’s objections. They in no way cast doubt on the authenticity of the signatures, and only suggest variations from procedures which the board is not bound to follow. Moreover, it is well settled that it is the burden of the appellant to furnish this court with a complete record which sufficiently allows us to decide the issues presented. (Hirn v. Edgewater Hospital (1980), 86 Ill. App. 3d 939, 408 N.E.2d 970.) The supervisor may not find fault with a record it was her responsibility to have prepared and filed. We therefore agree with the trial court’s decision that the electoral board did not err in its manner of authenticating the signatures on the petition.

For the foregoing reasons, the judgment of the circuit court of Shelby County is affirmed.

Affirmed.

KARNS and HARRISON, JJ., concur.


author: JUSTICE GREEN

text:
    RICHARD ESTOCK, Plaintiff-Appellant, v. TRI-RENTAL COMPANY, Defendant and Third-Party Plaintiff-Appellee (McDowell Construction Company, Third-Party Defendant).
    Fourth District
    No. 4—83—0360
    Opinion filed April 10, 1984.
    Rehearing denied May 10, 1984.

      Lester Berry Smith, Ltd., of Peoria (M. Michael Waters, of counsel), for appellant.
    William R. Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Richard Estock, brought suit in the circuit court of Vermilion County against defendant-third-party plaintiff, Tri-Rental Company (Tri-Rental), seeking recovery for injuries alleged to have resulted from the negligence of Tri-Rental employees. After a trial by jury, a verdict was rendered in favor of plaintiff and against TriRental on the original complaint and in favor of Tri-Rental and against third-party defendant, McDowell Construction Company (McDowell), on the third-party complaint. Plaintiff appeals a judgment notwithstanding the verdict entered in favor of Tri-Rental as to the original complaint.

In finding for plaintiff, the jury fixed damages at $250,000, finding plaintiff’s comparative negligence to be 50% and returning a verdict for plaintiff in the amount of $125,000. On the third-party complaint, the jury found McDowell to be 40% negligent and entered a verdict in favor of Tri-Rental and against McDowell in the sum of $50,000.

On appeal, plaintiff maintains (1) the trial court erred in entering a judgment notwithstanding the verdict; (2) the trial court erred in failing to consider certain exhibits as substantive evidence; (3) the trial court erred in ruling that defendant’s conduct was not the proximate cause of plaintiff’s injury; and (4) the defendants have waived the right to a new trial, because of their failure to request the trial court to rule on its request for a new trial.

As the trial court correctly pointed out in its memorandum opinion “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.” Pedrick, v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

The evidence showed that plaintiff was the ironworkers’ foreman for McDowell on a construction project on which a crane with a hydraulic boom system was being used. At McDowell’s request, TriRental sent two repairmen, Ken Roark and A1 Johnson, to the job site to repair an oil leak in the boom of the crane. After certain work had been completed on the crane, plaintiff went onto the crane deck, saw oil running out of the back of the boom, and inserted his arm into a hole in the boom to wipe the oil off of the cylinder. At that time, the operator of the boom retracted the boom, causing plaintiff’s arm that was in the hole to be severely cut.

The plaintiff’s expert witness, a crane operator instructor, crane inspector and consultant in the crane field, indicated that the usual practice when a mechanic is making repairs is to have other workers leave the area until the repairs have been completed. The expert also answered in the affirmative a question as to whether a mechanic or signalman who is giving signals to a crane operator has “a responsibility to assure that the area is clear before a maneuver is directed.”

The evidence as to exactly what happened at the time of the injury was confusing. Considering plaintiff’s testimony and that most favorable to him, the following occurred: Plaintiff was present when Roark and Johnson discussed the leak with the crane operator, and he then left the area for about five minutes. During this time, the repairmen had the operator extend the boom. They then got on a retaining wall and had the operator retract the boom slightly to enable Roark to make a fitting. Roark then directed that the boom be extended and checked for a pressure leak. He and Johnson then descended the retaining wall, the boom was extended, and Roark and Johnson went to a service truck to clean their hands. In the meantime, plaintiff had returned and talked to Roark and Johnson, and they returned the crane ' to him. Plaintiff then climbed on the deck of the crane, walking past the operator. Plaintiff did not notify anyone that he was going to put his arm in the hole but did so as a split-second decision. While his arm was in the hole, Roark made a motion with his arms that could reasonably have been taken as a signal to retract the boom. The operator retracted the boom, bringing about plaintiff’s injury.

Plaintiff contends that Tri-Rental was guilty of negligence, because its agent, Roark, should not have given a signal for the retraction of the boom without first checking to see that it was safe for all concerned to do so.

In granting judgment notwithstanding the verdict, the trial court concluded that plaintiff’s act of placing his arm into the boom was so unforeseeable that any negligence on the part of Roark in signaling to retract the boom could not be a proximate cause of plaintiff’s injury.

In order to establish proximate cause in a negligence case, the plaintiff need not prove the precise nature of the occurrence giving rise to the injuries. (Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 363 N.E.2d 378, aff’d (1978), 73 Ill. 2d 100, 382 N.E .2d 1205.) Moreover, determination of the existence of probable cause has been an issue upon which the trier of fact has been given great deference. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.) However, we need not pass upon whether the proof of proximate cause was insufficient as a matter of law, because we hold that plaintiff failed to prove that defendant owed a duty to plaintiff that was breached.

In Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, the court discussed the question of duty and proximate cause in a negligence action. There, the court stated:

“A complaint for negligence must set out: the existence of a duty owed by the defendant to the plaintiff, a breach of that duty and an injury proximately resulting from the breach. (Mieher v. Brown 54 Ill. 2d 539, 541.) The character of the duty of the defendant which must be established was described in Prosser, Handbook of the Law of Torts (4th ed. 1971), section 53: ‘In other words, “duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff ***.’ This question, i.e., whether the defendant and the plaintiff stood in such a relationship to one another that the law imposed upon the defendant an obligation of reasonable conduct for the plaintiff’s benefit, is one of law for determination by the court. Mieher v. Brown, 54 Ill. 2d 539, 541; Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99; see also Prosser (4th ed. 1971), sec. 52.” (56 Ill. 2d 372, 374, 308 N.E .2d 617, 618.

The court further noted that the question of whether a legal duty exists cannot be answered on the basis of foreseeability alone because of the many other factors which must be considered prior to imposing a duty in a particular case.

The thrust of plaintiff’s theory of recovery is the testimony of the safety practice of requiring a mechanic giving signals to an operator for a maneuver of the crane to avoid doing so before checking to see if it was safe to do so. No evidence indicated that the practice would be applicable even after the control of the crane had been returned to the foreman in charge as was done here. The relationship of the parties had changed. Roark, who was not in charge of the operation of the boom, had no duty to plaintiff, who was in charge, to see that no maneuver of the boom was made before it was safe to do so. Moreover, if Roark did give a signal to retract the boom, he did so at a time when it was obvious that he was in no position to make such a safety check. Under the circumstances, the operator was under a duty not to maneuver the boom on a signal from Roark who was not in charge.

Nothing in Mieher eliminates foreseeability as a factor in determining the existence of duty. That plaintiff would thrust his arm in the hole in the boom while the motor for the apparatus was running and do so without warning the operator was, as the trial court found, very unlikely. Roark could not reasonably have foreseen that, while the crane was in the custody of the foreman, the crane operator would proceed to retract the boom upon an indication from Roark when Roark was in no position to see whether the retraction could safely be made. The unforeseeability that Roark’s conduct might result in injury to plaintiff tends to further negate the existence of any duty by Roark to plaintiff that was breached here.

The exhibits which the trial court is alleged to have failed to consider as substantive evidence concern handwritten statements of Johnson and Roark. Whether the trial court failed to properly consider these exhibits in ruling on the motion for judgment notwithstanding the verdict is immaterial. They were admitted generally. Our determination of the record is based on that presented to the jury. We have considered the statements generally in making our ruling which is based largely on plaintiff’s own testimony.

Because of our ruling affirming the trial court, we need not consider the contention concerning plaintiff’s motion in the alternative for a new trial.

Affirmed.

MILLER and WEBBER, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES BARTON, Defendant-Appellee.
    Fifth District
    No. 83—386
    Opinion filed March 1, 1984.
    Rehearing denied April 5, 1984.
    Don W. Weber, State’s Attorney, of Edwardsville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    J. William Lucco, of Mudge, Riley & Lucco Law Offices, of Edwardsville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

An indictment charging defendant, James Barton, with two counts of bribery, one count of conspiracy to commit bribery, and one count of official misconduct was returned by the grand jury of Madison County. On motion of defendant, the trial court entered an order dismissing the indictment because of prosecutorial misconduct. The State appeals.

The charges against defendant were based on allegations that defendant, in his capacity as Madison County Supervisor of Assessments, had accepted $1,000 from William Nichols and gave $500 of the money to Walter Greathouse, a member of the Madison County Zoning Board of Appeals, in order to obtain Greathouse’s approval of a special-use permit requested by Mr. Nichols.

Defendant filed a pretrial motion requesting suppression of statements made by him on November 5, 1982, to an assistant State’s Attorney and an Illinois Division of Criminal Investigation agent. The motion alleged that defendant had been denied his constitutional right to counsel. The trial court granted defendant’s motion and entered an order suppressing the statements made by defendant.

Subsequently, defendant filed an amended motion to dismiss the indictment alleging, inter alia, that misconduct on the part of the Madison County State’s Attorney had deprived him of due process of law. At the hearing on the motion to dismiss, Marvin Darling, a former administrative assistant of the Madison County State’s Attorney, Don W. Weber, testified that in May 1981, Mr. Weber stated that he would get defendant. The parties subsequently stipulated to the introduction of the following evidence and exhibits into evidence:

Mr. Weber was elected State’s Attorney of Madison County on November 4, 1980, and, a few days later, declared that the public wanted a prosecutor like “Attilla the Hun.” Mr. Weber also pledged to investigate defendant.

On March 30, 1981, after a grand jury had failed to return an indictment against defendant for making improper property assessments, Mr. Weber publicly commented that “[tjhere may not be criminal activity ***, but there might be grounds for dismissal or other disciplinary action.” On May 15, 1981, Mr. Weber stated that he would comply with a recommendation made in the grand jury report that he release to the Madison County Board a report made by the Illinois Division of Criminal Investigation concerning defendant’s activities in office.

On November 12, 1982, the newspaper media became aware of the fact that a new grand jury investigation of defendant was being conducted. That same day, defendant gave an interview to a newspaper reporter who had learned of the grand jury investigation. On November 16, 1982, Mr. Weber publicly announced that he would ask the grand jury to indict defendant for conspiracy to commit bribery and stated that William Nichols had told investigators that he gave defendant money for the purpose of influencing a zoning board of appeals decision. The next day, further comments from the State’s Attorney were published concerning defendant’s case.

On November 18, 1982, Mr. Weber told reporters that the indictment he sought against defendant for conspiracy to commit bribery was “not an iffy case.” The State’s Attorney commented to the press about the testimony of William Nichols and stated that defendant “never was cleared of impropriety despite the finding of insufficient evidence” by the 1981 grand jury. On November 19, 1982, the State’s Attorney suggested publicly that defendant was a “corrupt official.” A few days later, defendant proclaimed his innocence in a newspaper interview. On November 24, 1982, there were a number of newspaper articles concerning Illinois Division of Criminal Investigation inquiries regarding defendant’s alleged involvement in the bribery scheme.

On December 1, 1982, Mr. Weber again publicly urged that defendant be fired as Madison County Supervisor of Assessments. The following day, Mr. Weber urged that the defendant be “canned” prior to trial. When a reporter asked whether defendant should be considered innocent prior to trial, Mr. Weber replied that “[pjeople just don’t understand the law.” On December 6, 1982, a newspaper acknowledged that defendant’s statements which were later suppressed were included in the discovery materials made available to the press by the prosecution. On December 16, 1982, Mr. Weber announced to the press his frustration with the Madison County Board’s failure to fire defendant and said that he would seek an additional indictment against defendant for official misconduct. A day later, while commenting on the additional charge being sought against defendant, the State’s Attorney said, “I want to make sure that I get him.”

In early January 1983, Mr. Weber mailed a packet of material to the Madison County Board. The materials sent included Illinois Department of Criminal Investigation reports, a memorandum concerning dismissal procedures, and polygraph results suggesting deception on the part of Walter Greathouse. The incident and a description of the items mailed were reported in the newspaper.

On February 18, 1983, Mr. Weber was present at a public meeting attended by approximately 150 people. At this meeting Mr. Weber made the following remarks:

(1) “The more people we get involved in the Barton investigation, the more we can get them worked up.”

(2) “Barton is presumed to be innocent and I do not want to prejudice his trial.”

(3) “I told you a year and a half ago how I felt about this whole situation.”

(4) “Barton is just like that school teacher, Van Hook [who had been recently convicted of taking indecent liberties with a child].”

(5) “Barton’s trial is my number one priority along with the Prante case, now that Van Hook’s case is over with.”

On March 8, 1983, the personnel committee of the Madison County Board held a closed meeting concerning defendant. At this meeting, Assistant State’s Attorney Keith Jensen addressed the committee. Mr. Jensen said that defendant was “telling the police one thing and turning around in front of the newspapers, he’s a chameleon. He’s innocent of anything. He wants his trial, he wants to hide behind the Fifth Amendment, he wants all the advantages he can, but he is conveying a different impression to those people than he is to you people.” Following this meeting, Mr. Weber told reporters that the Madison County Board should fire defendant.

On March 12, 1983, a benefit dance was sponsored by the Illinois Division of Criminal Investigation. About 300 persons attended. During the dance, the State’s Attorney made unspecified comments concerning defendant over the public address system. The comments were made in the context of a contest conducted by the State’s Attorney to determine by crowd applause which statements made by public officials and recently convicted defendants should receive an award for the “dumbest statement” of the year.

On March 17, 1983, the State’s Attorney publicly criticized the members of the Madison County Board for not firing defendant. Mr. Weber reiterated that defendant was his number one priority and again compared defendant to Van Hook, the man recently convicted of indecent liberties with a child.

On March 22, 1983, defendant’s motion to suppress the statements he made on November 5, 1982, was heard. On March 25, 1983, Mr. Weber told the press that he had removed himself as prosecutor of defendant’s case and suggested that defense counsel was attacking him as a “typical defense tactic.” After the trial court entered an order on March 29, 1983, suppressing defendant’s statements, the State’s Attorney publicly derided the trial judge, stating that the judge was “not now, nor has he ever been a friend to the prosecution. Needless to say, he is not my favorite judge.”

In an April 6, 1983, newspaper article, the State’s Attorney was reported to have defended the tactics used to obtain defendant’s statement and stated that “clever criminals require clever tactics to catch them.” The next day, an amended motion to strike defendant’s motion to dismiss was delivered to defense counsel by an assistant State’s Attorney. Defense counsel was informed that the amended motion to strike, which alleged numerous violations of the Code of Professional Responsibility for lawyers (87 Ill. 2d R. 1 — 101 et seq.) on the part of defendant’s attorney, would be filed in the trial court if the defendant’s attorney proceeded to a hearing on the motion to dismiss.

On May 11, 1983, the trial court issued an order dismissing all counts against defendant on the grounds of prosecutorial misconduct. The trial court’s order concluded that defendant had been denied due process, that defendant’s right to counsel of his choice had been seriously impaired, that fundamental fairness had been violated, and that the entire course of the prosecutor’s conduct had caused actual and substantial prejudice to defendant. The State has perfected this appeal in which we are asked to review the propriety of the trial court’s dismissal of the indictment.

In the order of dismissal, the trial court did not specify what due process right or rights it felt had been violated. We agree with the State, however, that two due process grounds appear applicable: (1) prejudicial pretrial publicity generated by the State’s Attorney; and (2) denial of defendant’s right to counsel.

As defendant correctly notes, the trial court has the inherent authority to dismiss an indictment where there has been a clear denial of due process. (People v. Lawson (1977), 67 Ill. 2d 449, 455-56, 367 N.E.2d 1244, 1246.) It is also true, however, that this power should be utilized with restraint and a due process violation will warrant dismissal of an indictment only if the violation is clear and can be ascertained with certainty. (People v. Lawson (1977), 67 Ill. 2d 449, 456-57, 367 N.E.2d 1244, 1247; People v. Schroeder (1981), 102 Ill. App. 3d 133, 135-36, 429 N.E.2d 573, 576.) To support a dismissal of a criminal charge because of prosecutorial misconduct, the alleged misconduct must result in actual and substantial prejudice to a defendant. (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Mack (1982), 107 Ill. App. 3d 164, 171, 437 N.E.2d 396, 402.) Applying this standard to the case at bar, we find that the prosecutor’s conduct in the instant case does not require dismissal of defendant’s indictment.

Although there was ample evidence of potentially adverse publicity, such proof alone does not necessarily establish prejudice since a defendant can receive a fair trial by impartial jurors despite harmful publicity. (People v. Torres (1973), 54 Ill. 2d 384, 389, 297 N.E.2d 142, 145; United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 298-99.) In Stanford, a case dealing with a similar due process contention regarding adverse publicity, the court observed that there are more traditional procedures for avoiding prejudice due to adverse publicity. These procedures include the voir dire process, a motion for a continuance and a motion for a change of venue. (United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 299.) In the case at bar, defendant failed to pursue any of these avenues of relief. Defendant made no motion for a change of venue nor did he move for a continuance. Further, the trial court dismissed the indictment prior to trial where the voir dire examination of prospective jurors would have been conducted. In doing so, the trial court could not have determined whether any actual prejudice to the defense resulted from adverse publicity generated by the prosecution. United States v. Stanford (7th Cir. 1978), 589 F.2d 285.

Additionally, we note that the trial court has the statutory power to appoint a special prosecutor whenever a prosecutor “is interested in any cause or proceeding” (Ill. Rev. Stat. 1981, ch. 14, par. 6). In the present case, the trial court’s concern about the conduct of the State’s Attorney could have been eliminated by the"appointment of a special prosecutor with no personal interest in defendant’s case.

In view of the evidence and the availability of procedures to offset prejudice due to adverse publicity, we conclude that the trial court’s dismissal of defendant’s indictment was erroneous. The trial court’s conclusion that actual and substantial prejudice to defendant resulted from the publicity was speculative and did not justify punishing society for the misconduct of a prosecutor. See United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 299.

The alternative due process ground for dismissal, the denial of defendant’s right to counsel at the November 5, 1982, interview, is also not a compelling reason to dismiss the defendant’s indictment in the case at bar. The proper remedy for infringement of the right to counsel is suppression of the evidence obtained in violation of that right, not dismissal. (United States v. Morrison (1981), 449 U.S. 361, 366, 66 L. Ed. 2d 564, 569, 101 S. Ct. 665, 668-69; People v. Amft (1982), 109 Ill. App. 3d 619, 624, 440 N.E.2d 924, 928.) Since the statements allegedly illegally obtained from defendant were in fact suppressed, defendant has failed to demonstrate prejudice as a result of prosecutorial misconduct in denying defendant the right to counsel.

Although we have determined that there was insufficient proof that the conduct of the State’s Attorney resulted in the denial of due process so as to warrant a dismissal of the criminal proceedings in the instánt case, we emphasize that we do not condone the prosecutor’s behavior. The actions of Mr. Weber in these proceedings were wholly unjustified and inappropriate. While we applaud the vigorous prosecution of crime, we are appalled when, as here, a prosecutor becomes a persecutor. If the conduct of a prosecutor is the result of any motive other than the fair and impartial prosecution of alleged crimes, such conduct must not be tolerated by a court.

The conduct of the prosecutor in the case at bar was, to say the least, reprehensible. The question of the sanctions to be applied as punishment for such conduct and to ensure that it is not repeated is not before this court. However, the interest of the public in the impartial prosecution of alleged crimes dictates that this cause be reversed and remanded to the trial court for further proceedings free of the acrimony and apparent vendetta that characterized the proceedings which prompted the trial court to dismiss the indictment.

For the foregoing reasons, the judgment of the circuit court of Madison County is reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JONES and KARNS, JJ., concur.


text:
    ERNEST CORNES, Plaintiff-Appellant, v. JOHN B. GROVES, Chief Records Officer, Illinois Department of Corrections, Defendant-Appellee.
    Fifth District
    No. 83—66
    Opinion filed March 27, 1984.

      Ernest Cornes, of Menard, for appellant, pro se.

    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is a mandamus action brought by petitioner, Ernest Cornes, seeking to compel the defendant, John B. Groves, the Chief Records Officer of the Illinois Department of Corrections, to credit petitioner with time for good behavior (hereinafter good time) while serving the first of two sentences which were to run consecutively.

On January 26, 1954, petitioner pleaded guilty to a charge of armed robbery and was sentenced to an indeterminate term of imprisonment of 10 years to life. Petitioner was eligible for parole in 1973 and on June 7-, 1974, he was paroled. On October 11, 1977, while still on parole for the armed robbery conviction, petitioner was charged with the offenses of rape, deviate sexual assault, and intimidation. On June 6, 1978, petitioner was convicted of all three offenses and was sentenced to imprisonment for 60 years for rape, 60 years for deviate sexual assault, and 10 years for intimidation. These determinate sentences were to be served concurrently but were ordered to be served consecutively to the armed robbery sentence of 10 years to life imprisonment. Pursuant to section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4), petitioner’s indeterminate 10 years to life sentence for the armed robbery was aggregated with the determinate 60 years sentence subsequently imposed to form an indeterminate sentence of 70 years to life.

On September 27, 1982, petitioner filed a complaint for writ of mandamus which requested that the defendant be compelled to award him credit for all time served in custody since his original custody date on his armed robbery conviction, which was December 17, 1953. Petitioner, relying on section 5 — 8—4(e)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(e)(4)), alleged that he was improperly denied good time credits for the period' of time between his original custody date on his armed robbery conviction and his parole date on this conviction, which was June 7, 1974. Petitioner urges that good time earned during this time period should be credited toward his release date on his subsequent sentence.

Petitioner’s complaint for writ of mandamus was eventually dismissed and this appeal was perfected.

On appeal, petitioner contends that the plain language of section 5 — 8—4(e)(4) of the Unified Code of Corrections entitles him to receive the good time credit he seeks. The State maintains that a mandamus proceeding will not lie in the instant case and, alternatively, that petitioner’s literal interpretation of section 5 — 8—4(e)(4) is contrary to the intent of the legislature and should not be followed.

Initially, before we address the merits of the parties’ contentions concerning the statute involved in this case, we reject the State’s contention that mandamus is not a proper remedy. If a prisoner alleges that the Department of Corrections has denied him good time to which he or she is entitled, then a mandamus action is proper. See People ex rel. Beadle v. Illinois Parole & Pardon Board (1968), 40 Ill. 2d 290, 239 N.E.2d 782, cert, denied (1969), 393 U.S. 1070, 21 L. Ed. 2d 715, 89 S. Ct. 730.

We now consider defendant’s contention that he was improperly denied good time. The relevant statute provides as follows:

“(e) In determining the manner in which consecutive sentences of imprisonment, one or more of which is for a felony, will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents:
* * *
(4) the offender shall be awarded credit against the aggregate maximum term and the aggregate minimum term of imprisonment for all time served in an institution since the commission of the offense or offenses and as a consequence thereof at the rate specified in Section 3 — 6—3 of this Code.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(e)(4).)

Subparagraph (e) of section 5 — 8—4 of the Unified Code of Corrections is directed to the Department of Corrections and sets forth the manner in which consecutive sentences shall be served for the purpose of determining parole eligibility. (People v. Goffman (1976), 65 Ill. 2d 296, 302, 357 N.E.2d 483, 486; People v. Nicks (1976), 62 Ill. 2d 350, 354, 342 N.E.2d 360, 362-63.) The entire Council Commentary regarding subparagraph (e) states:

“Under subparagraph (e), the Department of Corrections must consider the consecutive sentences as one sentence with an aggregate maximum and minimum for purposes of parole and good time. The application of subparagraph (e) is made to all persons presently serving consecutive sentences. Under this section the Department can simplify its administration of sentences for purposes of parole eligibility and parole. This should also aid the offender to concentrate his rehabilitative efforts on a single longer sentence instead of having to view each sentence as a separate hurdle to clear before going on to the next. This abolishes the fiction of ‘institutional parole’ under which a person served 6 months’ parole in the penitentiary between consecutive indeterminate sentences.” Ill. Ann. Stat., ch. 38, par. 1005 — 8—4, Council Commentary, at 164 (Smith-Hurd 1982).

The State argues that the statutory language “since the commission of the offense or offenses and as a consequence thereof” should be construed to mean that good time begins to be counted from the date of imprisonment on the consecutive sentences and not before. In other words, good time can be awarded under section 5— 8 — 4(e)(4) only after the imposition of a consecutive sentence. We think this interpretation of the statute is correct.

We would also note that the State’s reliance on section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—7(b)) is misplaced. Section 5 — 8—7 establishes “rules for calculating the length of the term of imprisonment.” (Ill. Ann. Stat., ch. 38, par. 1005 — 8—7, Council Commentary, at 224 (Smith-Hurd 1982).) It does not pertain to the calculation of good time when a consecutive sentence has been imposed.

The State further urges that to accept defendant’s interpretation of section 5 — 8—4(e)(4) of the Unified Code of Corrections would defeat the legislative purpose and render this statutory provision absurd since it would place defendant in a more favorable position than if he had been given concurrent sentences. We agree. Both logic and the statutory language of section 5 — 8—4 taken as a whole indicate that consecutive sentences are deemed to be more serious punishment than concurrent sentences. Moreover, to credit defendant with time served on his prior conviction would, in effect, allow him double good time and would allow the credit previously received for time served on his first sentence to be credited towards any new offenses which may be committed. A statute should be construed so as to avoid absurd results. (People v. Dunlap (1982), 110 Ill. App. 3d 738, 743, 442 N.E.2d 1379, 1383.) Since defendant’s literal interpretation of section 5 — 8—4(e)(4) would have the potential effect of making a concurrent sentence more serious than a consecutive sentence and would, in addition, provide defendant with a windfall of good time, we are not justified in adopting defendant’s interpretation of the statute. See People ex rel. Beadle v. Illinois Parole & Pardon Board (1968), 40 Ill. 2d 290, 239 N.E.2d 782, cert, denied (1969), 393 U.S. 1070, 21 L. Ed. 2d 715, 89 S. Ct. 730.

For the reasons set forth, the judgment of the circuit court of Randolph County is affirmed.

Affirmed.

WELCH, P.J., and KARNS, J., concur.


author: JUSTICE JONES JUSTICE HARRISON,

text:
    FREDERICK F. SHELTON et al., Plaintiffs-Appellees, v. HELEN ANDRES, Defendant-Appellant.
    Fifth District
    No. 82—749
    Opinion filed March 2, 1984.
    Rehearing denied April 6, 1984.

      HARRISON, J., dissenting.
    Feirich, Schoen, Mager, Green and Associates, of Carbondale, for appellant.
    Patrick L. Duke, of Smith, McCollum, Riggle & Moses, of Flora, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of Wayne County that quieted title in the plaintiffs to seven-twelfths interest in the oil, gas and other minerals underlying an 80-acre tract of land. The seven-twelfths interest in the oil, gas and other minerals had been the subject of a reservation in a deed of the surface of the 80 acres to the plaintiffs from defendant’s predecessor. The judgment in question terminated the reservation because of the court’s finding that the production of oil and gas from the 80-acre tract had ceased. Although the 80-acre tract was included in a unit organized for the secondary recovery of oil and unit operations and production had continued throughout the pertinent time-span, the court found that production of oil and gas from the 80 acres had ceased when the pump and other equipment used for primary production of oil and gas were removed from the 80 acres so that the actual lifting of oil to the surface no longer occurred on the 80-acre tract. The issue presented in this appeal is whether, where unit production was from wells off the tract, the secondary recovery of oil and gas from the unitized pool constituted production from the 80-acre tract so as to extend the reservation of the seven-twelfths interest as continuous production. We hold that it did and reverse.

The facts are furnished in a stipulation of the parties and a deposition of the unit operator that was submitted as evidence by agreement. S. D. Broyles was the owner of the surface and seven-twelfths interest in the oil, gas and other minerals in the 80-acre tract on July 16, 1962. On that date he and his wife conveyed the tract to the plaintiffs. The deed contained the following habendum clause:

“The Grantor, S. D. Broyles expressly reverses from this conveyance and unto himself, his heirs and assigns, all of his undivided interest in and to all of the oil, gas and other minerals lying in, on and under, and that may be produced from said described real estate as long as there is production on said described real estate. When said production of oil on said described real estate ceases production, said interest owned by the said Grantor in the above described real estate reverts to the said grantees herein.”

At the time the deed was executed and delivered there was a producing oil well on the land. The well continued in production, and S. D. Broyles received his portion of the royalty payments from it, until on or about June 1, 1964, when the 80-acre tract became a part of the Sycamore Unit, organized for the secondary recovery of oil by water-flood. The participation factor assigned to the 80-acre tract was 13.70745% of the oil produced from the unit. S. D. Broyles, as a royalty owner, signed the unitization agreement, but the plaintiffs did not. Following the unitization, S. D. Broyles continued to receive royalty checks, but they were paid to him by virtue of participation in the unit operation and were not based upon the oil lifted to the surface through the pump and other production equipment located on the 80-acre tract. The unit operator continued to utilize the well located on the 80 acres in question for production from the unitized pool until on or about May 1, 1973. At that time further production through that well became impractical, presumably because of the encroachment of water being injected into the formation to generate the secondary recovery.

By deed dated December 9, 1971, S. D. Broyles placed the seven-twelfths interest in the oil, gas and other minerals in the 80-acre tract in joint tenancy with himself and Helen Andres. S. D. Broyles subsequently died, leaving Helen Andres the sole owner of the seven-twelfths interest that was the subject of the reservation.

Plaintiffs filed a complaint on May 31, 1978, to quiet title in themselves to the seven-twelfths interest in the oil, gas and other minerals. The essential allegations of the complaint were that at the time of the deed to the plaintiffs there was one producing oil well on the land. Sometime prior to September 1973, production of oil from that well permanently ceased, and by virtue of the condition expressed in the deed from S. D. Broyles to themselves, the seven-twelfths interest in the oil, gas and other minerals “reverted” to them. Defendant filed an answer and affirmative defenses that, in essence, asserted that at all times relevant to the complaint there was continuous production from the 80-acre tract because it was a constituent part of the Sycamore Unit and that so long as production from the unit continued, the reservation of oil, gas and other minerals in the deed to plaintiffs remained in effect. Upon motion by plaintiffs, the court entered an order on November 25, 1981, striking defendant’s affirmative defenses. The order included a finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) that there was no just reason for delaying an appeal of the order.

The case was subsequently submitted to the court for decision upon the stipulation of facts and the unit operator’s deposition. They show, in addition to other facts already related, that during 1974, 1975 and 1976, no oil or gas was produced from any well located on the 80-acre tract although oil was continuously produced from wells located on other tracts within the Sycamore Unit and that defendant regularly received royalty payments by reason of the unit production allocated to the 80-acre tract. Further, on or about May 8, 1977, a new well drilled on the 80-acre tract commenced production, and on or about February 8, 1978, production was resumed from the original well on the 80-acre tract, but such resumed production was from a new, deeper formation that had been reached by additional drilling and was not being subjected to secondary recovery. Thus, from about May 1, 1973, until May 8, 1977, no oil or gas was physically brought to the surface from any location on the 80-acre tract.

In rendering its judgment quieting title to the seven-twelfths interest in the oil, gas and other minerals in the plaintiffs, the court found that from approximately three to four .months prior to September 1973 to on or about May 8, 1977, there was no production of oil, gas or other minerals from the 80-acre tract and that any former pro? duction of oil, gas or other minerals had permanently ceased. By vir? tue of the cessation of production of oil, gas or other minerals frorn the 80 acres, the seven-twelfths interest formerly owned by defendant terminated and, pursuant to the deed in question, that interest was vested in plaintiffs as of September 1, 1973. The court further found that plaintiffs were entitled to the proceeds of any oil and gas produced and sold after May 8, 1977, but not before, including such proceeds held by a trustee pendente lite. The dispositional portion of the judgment was in accord with the court’s findings as related.

We initially consider plaintiffs’ contention that we are without jurisdiction to consider the issues raised by defendant’s affirmative defenses. Those issues relate to the extension of the reservation of the seven-twelfths interest by the continued production of oil and gas from the Sycamore Unit and, plaintiffs argue, were foreclosed from further consideration when defendant did not appeal the order striking affirmative defenses. We find, however, that plaintiffs’ argument regarding the issues raised by defendant’s affirmative defenses is not well taken. The order striking the affirmative defenses was not final because it did not determine the litigation on its merits so that, if affirmed, the only thing remaining would be to proceed with execution on the order. (Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.) The order striking the affirmative defenses was interim in nature. The fact that the trial court made a finding pursuant to Supreme Court Rule 304(a) that “there is no just reason for delaying appeal of this order” does not confer finality upon an order that is otherwise not final. (Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co. (1976), 63 Ill. 2d 61, 344 N.E.2d 461; Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill. App. 3d 1071, 398 N.E.2d 1228.) Accordingly, the appeal from the judgment draws into consideration all prior interim orders and rulings that produced the judgment. Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380.

We would note parenthetically that we have been cited authority that relates to unitization or pooling of tracts for the purpose of creating a drilling or spacing unit for primary production. Although, strictly speaking, “pooling” refers to the consolidation of multiple tracts for purposes of forming a drilling or spacing unit, and “unitization” refers to a consolidation of tracts for joint operation of all or part of a reservoir, the terms often are used interchangeably. (5 W. Summers, Oil & Gas sec. 951 (1966); compare 1 W. Summers, Oil & Gas sec. 76 (1954).) The rules that attend the formation and operation of units formed for drilling or spacing purposes may or may not pertain to the consequences that flow from unitization of tracts for secondary recovery purposes. We make note of the distinction between the purposes attending unitization so as to be aware of the different applications that might pertain.

As regards the principal issue in the case, there is no direct lilinois precedent. The parties cite and discuss the application of four cases of this court: Ego Oil Co. v. Garner (1983), 115 Ill. App. 3d 82, 450 N.E.2d 375, Belden v. Tri-Star Producing Co. (1982), 106 Ill. App. 3d 192, 435 N.E.2d 927, Bi-County Properties v. Wampler (1978), 61 Ill. App. 3d 799, 378 N.E.2d 311, and Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341 N.E.2d 428. We have re-examined those cases with the issue presented by the instant case in mind and have determined that they strongly indicate the conclusion that production of oil and gas from the 80-acre tract in question has not ceased, that the defendant continues to be the owner of the seven-twelfths interest in the oil, gas and other minerals underlying the tract, and that the plaintiffs’ interest continues to be executory in nature and unrealized. Not cited, but nevertheless somewhat pertinent, is the supreme court case of Dickerson v. Ray (1960), 20 Ill. 2d 107, 169 N.E.2d 341. In that case a conveyance of one-half interest in the oil and gas under two separate tracts was made in one deed. The conveyance was for a stated term and “as long thereafter as oil or gas or both shall be produced therefrom.” Within the stated term, both tracts yielded production. After the expiration of the stated term production ceased on one tract but continued on the other. The case considered the issue of whether the continuous production on the second tract served to extend the ownership of the grantee of the deed on one-half interest of the oil and gas in the first tract. The supreme court held that it did:

“Arising first in decisions relating to oil-and-gas leases, it is the rule of the vast majority that where a number of land owners demise their lands in a single lease, where contiguous or not, and provide that after a designated period the interest covered by the said instrument will continue for as long as there is production upon said land, production which is sufficient to continue the interest as to any of the land described is sufficient to continue the interest as to all of the land described.” (Dickerson v. Ray (1960), 20 Ill. 2d 107, 113-14, 169 N.E.2d 341, 344.)

Although not concerned with unitization for secondary recovery operations, cases from other jurisdictions nevertheless would provide support for the result we reach. Panhandle Eastern Pipe Line Co. v. Isaacson (10th Cir. 1958), 255 F.2d 669; Classen v. Federal Land Bank (1980), 228 Kan. 426, 617 P.2d 1255; Southland Royalty Co. v. Humble Oil & Refining Co. (Tex. 1952), 249 S.W.2d 914.

Further analysis of the foregoing cases is unnecessary, however, because of our finding that the outcome of this case is controlled by a statute, section 23.2(a) of “An Act in relation to oil, gas, coal and other surface and underground resources ***,” commonly called the Oil and Gas Conservation Act (Ill. Rev. Stat. 1977, ch. 96½, par. 5439(a)). Section 23.2(a) was added to the Act in 1951 and was amended to its present form, effective June 29,1953. It provides:

“When two or more separately owned tracts of land are embraced within a pool or a portion of a pool suitable for secondary recovery methods, the owners thereof may validly agree to integrate their interest therein and to develop their land as a unit, and production from any tract in such established unit shall be regarded as production from all presently owned tracts or interests within such units.”

This statute expressly denotes its application to voluntary unitization for secondary recovery purposes and expressly provides that production from any tract in the unit shall be regarded as production from each tract in the unit. Section 23.2(b) further states that subsection (a) applies to every nature of ownership in the oil and gas pool unitized for secondary recovery. The application of section 23.2(a) cannot be denied. It was adopted long before any of the transactions pertinent to this case took place, and the parties must be deemed to have incorporated the provisions of the statute into the terms of their transaction.

Statutory provision was made for a measure of involuntary unitization when the Illinois legislature enacted sections 23.3 through 23.16 of the Oil and Gas Conservation Act, effective October 1, 1975 (Ill. Rev. Stat. 1977, ch. 96½, pars. 5440 through 5453). Although these sections of the Act are not applicable to this case, they nevertheless serve to illustrate the public policy that fostered both statutes. That public policy is to obtain the maximum recovery of oil and gas from a common pool irrespective of the separate ownership interests in that pool measured by overlying surface boundaries and interests. In section 23.15, subsection 3 and 4, it is specified that production from unitized tracts is to be allocated and paid to the several persons entitled upon the basis of their participation in the separately owned tracts of the unit in the same manner as though the unit had not been organized and, furthermore, that wells drilled or operated on any tract in the unit are to be regarded as wells drilled on each separately owned tract within the unit.

Many engineering studies, along with many practical applications, have conclusively established that secondary recovery of oil and gas results in production greatly in excess of production by primary recovery methods. From this salient fact flows the public policy that encourages and, in the case of the statutes providing for involuntary unitization, demands unitization and secondary recovery. In making provisions for both voluntary and involuntary unitized operations for secondary recovery of oil and gas from a common pool, the legislature has obviously pursued a policy that will maximize production while assuring continuity of ownership and participation. In the secondary recovery process the secondary recovery medium, in this case, water, is injected into the common pool in such a manner that it will drive oil and gas from all the tracts in the unit to the recovery wells. The process necessarily removes oil and gas from all the tracts comprising the unit, and, thus, the production from each tract in the unit is continuous until all production of oil or gas from the unit ceases. In assuring continuity of ownership of the interests in the separate tracts which comprise the unit, the statutes are but affording legal recognition to the physical facts of the secondary recovery process whereby the oil and gas underlying every common owners tract is driven to optimum recovery wells for the pool.

In furtherance of policy considerations, and in recognition of the application of the statute regarding voluntary unitization, we hold that production from the 80-acre tract in question never ceased but that it has been at all pertinent times continuous. Brief reflection will show the rationale for the conclusion we reach. The creation of interests in oil and gas rights by grant or reservation, for terms that remain extant “so long as production continues from said land” are commonplace. Owners of such interests, doubtless including S. D. Broyles in this case, would never agree to subject their ownership to unitization for secondary recovery purposes, for, as soon as oil or gas ceased to be lifted to the surface of the tract of their interest, their participation in the production would terminate. Their best interest would be to string along with the faltering primary production, thus reasonably and understandably choosing something over nothing. In the absence of statutory provisions such as section 23.2(a) or a comparable common law rule, unitization for secondary recovery purposes would all but cease and much oil production would be lost, to the obvious great detriment of the public.

It is of no consequence that the plaintiffs did not sign the voluntary royalty owners’ unitization agreement. They had no interest to be committed to the formation of the unit. They could have no interest until production ceased, and it never did. The parties are in agreement, and we also agree, that the plaintiffs’ interest was executory and, therefore, they had no ownership for the duration of unit production, or for the duration of any further production from the newly drilled or deepened wells on the 80-acre tract. So long as there is continuity of production from the unit, or otherwise, the interest in the seven-twelfths interest in the oil, gas and other minerals in question remains in defendant’s ownership and control.

We cannot refrain from noting the incongruity in plaintiffs’ claim that the seven-twelfths interest in the 80 acres is theirs because production ceased on or about May 1, 1973, but that they are entitled to the royalties that have accrued to that interest by reason of the unit production subsequent to May 1, 1973. Plaintiffs seem to lay some stress on the language in the reservation that relates that the grantor reserved the seven-twelfths interest so long as oil and gas are produced “on said land.” Oil and gas are, of course, always produced from under the land, never “on” it. The incongruity arises from the fact that the source of the oil being produced has throughout remained the same, the oil-bearing formation that underlies the surface. The accrued royalties plaintiffs sought and received in the judgment were produced “from” the land, just as the royalties from the primary production were produced “from” the land.

The original oil and gas lease remains in effect. Indeed, the plaintiffs do not even attack the validity of the lease, which was also originally given for a stated term “and so long thereafter as oil and gas are produced.” The plaintiffs seek only to substitute themselves for the lessors because production has ceased “on said land.” It should be manifest that if defendant’s interest has terminated, so has the oil and gas lease from which plaintiffs now claim royalties.

Reversed.

KASSERMAN, J., concurs.

JUSTICE HARRISON,

dissenting:

In my view the majority’s conclusion that section 23.2(a) of the Oil and Gas Conservation Act is dispositive of this appeal operates to sidestep the question presented, and not to answer it. There is, of course, no question that owners may validly agree to integrate their interests in their land for purposes of oil production, and that, once this has been done, production from any single tract is construed as production from the unit for the obvious purpose of dividing up profits and expenses. It does not follow, however, that the unitization agreement operates as a device to insulate participants from the effects of preexisting clauses in the deeds by which they have acquired or retained their interests in the participating tracts. Accordingly, I dissent.

While the majority stresses the policy considerations favoring the promotion of oil production and recovery, those policy considerations do not and cannot dictate the proper result here. When Broyles conveyed his land to plaintiffs in 1962, two years before the unitization agreement was signed, he reserved to himself the mineral interest in the land for “as long as there is production on said described real estate.” It is axiomatic that a deed should be construed most favorably on behalf of the grantee (Logue v. Marsh (1977), 50 Ill. App. 3d 493, 496, 365 N.E.2d 1159), and I know of no Illinois precedent for relaxing this rule on the basis that the subject land contains oil. Thus, the question presented is fundamentally one involving construction of a deed, and it is the deed itself, and not the importance of oil production, which we must look to in order to determine the appropriate result.

When the legal principles pertaining to deed construction are applied to Broyles’ reservation of the mineral interest in the conveyed property, I believe that we must conclude, as did the trial court, that the reservation terminated in 1973, when the well physically located on the land stopped producing oil. While no Illinois case has focused precisely on this issue, at least one Texas court has held that the phrase “production on said land” means, in its ordinary use, production from wells physically located on the land in question. (Campbell v. Dreier (Tex. Civ. App. 1964), 382 S.W.2d 179, 182.) In my view, this is the interpretation most appropriately given to the reservation here, particularly since, as noted above, the deed must be construed most strictly in favor of the grantee, and hence most strictly against an expansive reading of Broyles’ reservation. This conclusion is buttressed by the fact, noted by the majority, that the statute permitting unitization agreements was in effect well before the time of the conveyance from Broyles to plaintiffs. A unitization agreement was certainly not unheard of in 1962; had Broyles wished to reserve the mineral rights in the Shelton land for as long as production either came from wells on the land or was allocated to the land by virtue of its participation in a unitization agreement, he could easily have expressed such an intention in the 1962 deed.

Additionally, I cannot agree with the majority’s cryptic observation that the Illinois cases discussed by the parties “strongly indicate the conclusion” that production from the tract has not ceased. In my opinion, these cases are either distinguishable from the case at bar or in fact contrary to the majority’s position.

In Belden v. Tri-Star Producing Co. (1982), 106 Ill. App. 3d 192, 204-05, 435 N.E. 2d 927, we noted:

“[A] lessor who does not sign a unitization agreement is entitled to royalties only from the oil and gas produced on his leasehold, and the lessor’s relationship with his lessee must be determined according to the original lease. From this description of the rights of unsigned interests, it follows that in order to extend a lease under its habendum clause where that lease is located within a unit which the lessor had not joined, production must be from the leasehold rather than from elsewhere in the unit. (Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341 N.E.2d 428.)”

While the instant case involves the reservation of mineral interest in a grantor by way of an habendum clause in a deed, I believe that the principles articulated in Belden apply with equal force here. Just as the lessor’s relationship with the lessee in Belden had to be determined with reference to the original lease, so must the relationship between plaintiffs and defendant here be analyzed with reference to the 1962 deed defining that relationship. Here, plaintiffs did not join in the unit, and permitting use of allocated mineral production to extend defendant’s mineral interest in the Shelton land operates to defeat the intentions of Broyles and plaintiffs as expressed in the 1962 deed.

Additional support for a result contrary to that reached by my colleagues may be found by reference to our decision in Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341 N.E.2d 428. In Morris, the plaintiffs acquired fee simple title to certain real estate, subject to a 1957 reservation in which defendants Mayden had reserved to themselves all mineral interests in the land “for the period which the present oil and gas lease to the Pure Oil Company, a corporation, remains in effect,” and further reserved in themselves an undivided one-half interest in minerals produced from the property at any time following termination of that lease. Subsequently, Pure Oil Company assigned its interests under the lease to Union Oil, and, in 1968, Union, Maydens and certain other parties entered into a unitization agreement. In their complaint, plaintiffs sought, among other things, money damages against defendants Mayden for oil and gas alleged to have been wrongfiilly appropriated from the time of the unitization agreement until the filing of the complaint. In affirming the trial court’s dismissal of the complaint, this court relied upon the fact that the complaint failed to allege that production had ceased from the land in question:

“The plaintiffs’ interest becomes possessory upon the termination of the oil and gas lease between defendants Mayden et al. and the Pure Oil Company. This lease, although amended and assigned, still remains operative. By the express terms contained in the lease it remains ‘in force’ for ‘as long * * * as oil or gas or either of them is produced from said land by lessee.’ As observed by Professor Summers in his treatise on Oil and Gas law, ‘the term cannot be extended by a pooling or unitization in which the holder of the reversion upon the term interest is not joined unless production is from the term acreage ***.' (5 Summers, The Law of Oil and Gas 96 (1966.) (Emphasis supplied.) Consequently, in view of the absence of any allegation that production has ceased from such land (the term acreage), the trial court was correct in dismissing plaintiffs’ amended complaint.” Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341-42.

While Morris came before us in a different procedural posture than does the instant case, I believe that what we said in that case constitutes at least an implicit, and a correct, rejection of the position taken by the majority here. Like the lease between Mayden and Pure Oil Company, the mineral interest retained by S. D. Broyles in the 1962 deed in this case was to last only so long as there was mineral production from the subject land. Had we taken the view in Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341 N.E.2d 428, that production from other lands which were part of the unitization agreement could constitute production from the subject land for purposes of perpetuating the lease, the absence of an allegation that production on the term acreage has ceased would not alone have been dispositive of the entire case; instead, we would have been required to examine the additional question of whether plaintiffs’ complaint also alleged the absence of allocated production from the unitization agreement. Our failure to require such additional examination, and our adherence to the rule articulated by Professor Summers, indicate our past unwillingness to extend the meaning of the term “production” in a manner which would override the expressed intentions of the parties to the original deed or lease.

The cases relied upon by defendant are distinguishable. Neither Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 237 N.E.2d 492, nor Bi-County Properties v. Wampler (1978), 61 Ill. App. 3d 799, 378 NE.2d 311, dealt with situations in which the holders of a “reversionary” interest in minerals had not, either by express consent or by ratification, become parties to a unitization agreement in which the current mineral interest holder had joined. The Bi-County case arose in the context of determining the amount of royalty payments owed to an undisputed holder of a royalty interest, and did not deal with the more fundamental question of what person or persons owned the mineral interest itself. Thus, the rule relied upon in Morris v. Mayden (1976), 35 Ill. App. 3d 338, 341 N.E.2d 428, and directly applicable to this case, was not a relevant factor in Bi-County, where all litigants had consented to the unitization agreement either by written agreement or by actions amounting to a ratification. (61 Ill. App. 3d 799, 805.) Ragsdale v. Superior Oil Co. (1968), 40 Ill. 2d 68, 237 N.E.2d 492, also does not mandate the result reached by the majority herein. While the court in Ragsdale recognized that a unitization arrangement “creates a single ownership of the entire unit by the owners of the several tracts making up the unit” (40 Ill. 2d 68, 70), it does not follow that participation in a unit operates to insulate the owner of the mineral interest in each single tract from the operation of clauses contained in the deed by which he has acquired or reserved his mineral rights.

Defendant’s reliance on Ego Oil Co. v. Garner (1983), 115 Ill. App. 3d 82, 450 N.E.2d 375, is also misplaced. In Ego Oil, we held that “production of oil within a unit extends [a] lease beyond its primary term as to the lands covered by the lease but not included in the unitized area.” (115 Ill. App. 3d 82, 87.) While this rule governs the relationship between a lessor and lessee regarding continuation of the lease, I cannot see how it would operate to permit the lessor to expand his own interest in the land at the expense of the other party to the deed by which he has acquired or retained his own mineral rights. As recognized in a similar context in Scott v. Union Producing Co. (5th Cir. 1959), 267 F.2d 469, 470, “It is the mineral deed, not the lease, that should have contained a provision securing to the term mineral owners the benefit of a shut-in *** provision.”

These authorities, coupled with proper analysis of the deed by which S. D. Broyles created and retained the mineral interest at issue, compel the conclusion that the judgment of the trial court is correct. The maximization of oil production, while a salutary goal, has not until today been allowed to override the fundamental right of our citizens to convey their property as they see fit, or the fundamental responsibilities of our courts to fairly interpret and enforce the terms of those conveyances.

I dissent.