author: JUSTICE VAN DEUSEN

text:
      In re MARRIAGE OF HAZEL KOCH, Plaintiff-Appellant, and HERBERT KOCH, Defendant-Appellee.
    Second District
    No. 83—0086
    Opinion filed November 3, 1983.
    Jonathan L. Carbary, of Robert A. Chapski, Ltd., of Elgin, for appellant.
    Howard W. Broecker, of Geneva, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The dispositive issue raised on this appeal is whether a judgment of dissolution of marriage which reserved maintenance and property issues for future determination is a final order and thus appealable under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).

On February 4, 1982, Hazel Koch filed a petition to dissolve her marriage to the defendant. On November 5, 1982, after a contested hearing on the grounds for dissolution, the trial court entered a written finding that the grounds for dissolution were established and con-tinned the matter for settlement of the remaining issues. On January 7, 1983, on motion of the defendant, judgment of dissolution of marriage was entered reserving issues relating to support and maintenance, property dissolution and payment of debts and attorney fees for future determination pursuant to section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 401(3)).

On January 13, 1983, plaintiff moved to vacate the judgment dissolving the marriage on the grounds that the said judgment was entered without giving plaintiff proper notice of, or an opportunity to contest, defendant’s motion that the judgment of dissolution be entered. The trial court, on the same day, entered an order denying plaintiff’s motion to vacate and found there was no just reason to delay an appeal. Plaintiff has appealed the order of January 13, 1983, denying her motion to vacate the judgment for dissolution of marriage, and the judgment order of dissolution of marriage entered January 7,1983.

Relying upon the recent Illinois Supreme Court opinion in In re Marriage of Leopando (1983), 96 Ill. 2d 114, defendant contends that the judgment of dissolution is not a final order within the meaning of Supreme Court Rule 304(a) and therefore not appealable.

We agree.

Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) provides, in part, that when multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more, but fewer than all, of the claims only if the trial court has made an express finding that there is no just reason to delay enforcement or appeal. However, despite the finding by the trial court that there is no just reason for delaying the appeal of the order, it is not appealable if it is not in fact a final order. National Tea Co. v. Gaylord Discount Department Stores, Inc. (1981), 100 Ill. App. 3d 806, 808-09; Smith v. Interstate Fire & Casualty Co. (1977), 47 Ill. App. 3d 555, 558.

In Leopando, the supreme court considered the effect of Rule 304(a) on the appealability of a dissolution order. Specifically, the question before the supreme court was whether a custody order, where the requisite special finding had been made and the question of maintenance, property and attorney fees had been reserved for future court action, amounted to a “claim” within the meaning of Rule 304(a). The supreme, court found that such custody order does not constitute a “separate” claim in a dissolution proceeding and is therefore not a final order. In reaching this conclusion, the court found that a petition for dissolution only advances a single claim for an order dissolving the marriage; other issues, such as custody, property disposition and support are merely questions ancillary to the cause of action. In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119.

In oral argument, plaintiff argues that the holding of nonappealability in Leopando should apply only to orders concerning ancillary questions such as custody and support, and should not bar the appeal of an order which resolves the single claim — the dissolution of. the marriage — even though the ancillary questions have not been resolved. Leopando cannot be construed so narrowly. The Leopando court not only found that a petition for dissolution of marriage advances a single claim and that custody orders, property distribution, et cetera are only ancillary questions or issues, but also found that until all the ancillary issues were resolved, the petition for dissolution is not fully adjudicated. In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119, citing Davis v. Childers (1965), 33 Ill. 2d 297 (Rule 304(a) does not authorize the appeal from an action involving a single claim in which fewer than all of the issues have been resolved).

It should be further noted that in reaching its conclusion the Leopando court found guidance in Justice Ward’s concurring opinion in In re Marriage of Lentz (1980), 79 Ill. 2d 400, 409. The judgment order in In re Marriage of Lentz was substantially identical to the order from which plaintiff seeks to appeal in the present case; it granted the petition for dissolution of marriage but reserved for future decision the ancillary questions of maintenance and property division. Justice Ward’s concurrence held that the single claim presented in a petition for dissolution is not a final order until a judgment is entered that disposes of the entire claim, including the ancillary issues of support and custody. The Leopando court reaches the same conclusion as did Justice Ward in In re Marriage of Lentz and unequivocally holds that issues raised in a dissolution of marriage case are not separate claims; therefore, until all matters are resolved an appeal cannot be taken under Rule 304(a). (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 120.) The appeal is dismissed.

Appeal dismissed.

REINHARD and HOPE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOPE

license: Public Domain

text:
    HOWARD A. KOOP & ASSOCIATES et al., Plaintiffs-Appellees and Cross-Appellants, v. KPK CORPORATION et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 82—615
    Opinion filed November 3, 1983.

      Philip C. Ruddy and James D. Skaar, both of Ruddy, Myler, Ruddy & Fabian, of Aurora, for appellants.

      Wendell W. Clancy and Gary V. Johnson, both of Clancy, McGuirk & Hulee, of St. Charles, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Following a bench trial, plaintiff Howard A. Koop (Koop) and defendants KPK Corporation (KPK), Seattle Steam Corporation (Seattle), Buskirk Lumber Company (Buskirk), and Robert L. Brumley (Brumley), appeal from various portions of a Kane County circuit court judgment awarding $46,200 to plaintiff and $49,000 to defendant KPK, pursuant to various contractual agreements between the parties.

The facts surrounding this controversy are as follows. On July 6, 1977, defendant Brumley entered into a purchase agreement with KPK to acquire two-thirds of the then outstanding stock in KPK Corporation. Plaintiff Koop was at that time one-third shareholder, as well as the president and chief operating officer of KPK. On July 15, 1977, KPK entered into a buy-sell agreement with its two shareholders, Brumley and Koop, whereby either stockholder had first option to acquire the shares of the other. Koop continued as president of KPK until March 9, 1978, when he entered into a stock redemption agreement with KPK. Brumley thereafter acquired all of Koop's outstanding shares, thus becoming the sole shareholder in KPK Corporation.

As consideration for Koop’s sale of the stock, Koop received a total of $400,000, some bank stock in the Batavia Investment Company, a car, and some incentives in the form of various contractual agreements which are the subject of this appeal. Among these agreements were certain employment contracts between Koop, Seattle and Buskirk, whereby Koop agreed to act as special assistant to the president of those corporations (Brumley). Seattle and Buskirk were both wholly owned subsidiaries of KPK. Seattle agreed to pay Koop $1,650 per month for his services, plus $50 per month toward the cost of a leased business automobile. Buskirk agreed to pay Koop $4,200 per month salary, plus $200 per month toward the leased automobile. Both of these contracts provided that in the event either party wished to terminate their respective contracts, then 30 days’ written notice was required.

In addition to the employment agreements, Koop also entered into a written “Agreement to Negotiate Sale or Lease” with KPK, whereby Koop was entitled to a commission if he could procure a purchaser or tenant for a building owned by KPK, known as “Building 48,” prior to July 1, 1979. The particulars of this agreement are discussed later in this opinion.

On May 12, 1978, Koop procured a tenant, Lifetime Foam Company, for Building 48, and the lease was subsequently executed on June 22, 1978. On July 28, 1978, Koop wrote KPK requesting $47,198 for his procurement of the tenant for Building 48. Attached to this letter was a detailed computation of this amount which had been prepared by Joseph Liss, a certified public accountant (CPA) and former treasurer of KPK.

Meanwhile, on July 1, 1978, Seattle and Buskirk notified Koop that his employment with them was terminated. On July 28, 1978, the same date as Koop’s letter requesting his procurement fee, Koop demanded wages and expenses for the month of July 1978 which he claimed were due him under the employment agreements with Seattle and Buskirk. KPK responded by letter dated August 23, 1978, advising Koop that the corporations were claiming a setoff of $7,219.76 owed by Koop to KPK for prior loans and from an overpayment of Koop’s salary. The matter was referred to Koop’s attorney, who advised KPK that its actions in this regard were in violation of an oral agreement to forgive these debts, which were allegedly made at the closing of the stock sale.

Plaintiff Koop ultimately brought this action against defendants to recover commissions, salaries, and other benefits allegedly due him under the various contracts, as well as attorney fees incurred in connection with the employment contracts. At the time of filing his complaint, Koop also obtained a temporary restraining order and later a preliminary injunction preventing KPK, Brumley and the New York Life Insurance Company from cancelling five New York Life Insurance policies owned by KPK on the life of Koop. Koop alleged that KPK had orally agreed to assign the policies to him, but then failed to do so. In response to Koop’s complaint, defendants filed an affirmative defense and counterclaim seeking to offset any amounts due to Koop by monies which Koop allegedly owed to KPK, Seattle and Buskirk. Defendants also alleged that Koop made false representations to Brumley regarding KPK’s financial condition when Brumley first acquired the two-thirds interest in KPK in 1977, and again when he acquired Koop’s shares in March 1978. Finally, defendants sought reimbursement of the insurance premiums which KPK was required to pay under the restraining order obtained by Koop and denied any oral agreement to assign the policies to Koop.

After hearing evidence and arguments of counsel, the circuit court found that: Koop was entitled to a commission in the amount of $40,100 from KPK under the agreement to negotiate sale or lease; Koop was entitled to one month’s salary plus expenses from Seattle and Buskirk; certain debts owed by Koop to KPK and Buskirk were not forgiven at the time Koop sold his stock to KPK and Brumley; Koop did not fraudulently misrepresent the condition of KPK to Brumley; there was no oral agreement to assign the life insurance policies to Koop; KPK was entitled to reimbursement from Koop for insurance premiums it was required to pay pursuant to the preliminary injunction; and Koop was not entitled to recover attorney fees in connection with his claim against Seattle and Buskirk. Defendants appeal from the court’s findings on the commission and misrepresentation issues. They also allege that the court erroneously failed to rule on their counterclaim for an offsetting of amounts due to Koop by debts which Koop owed to them. Koop appeals from the court’s findings on the issues of forgiveness of debts, life insurance assignment, and attorney fees.

We first consider defendants’ contention that the trial court erred when it determined that Koop was entitled to a commission under the “Agreement to Negotiate Sale or Lease” of Building 48. The agreement provides in pertinent part:

“(b) If a tenant for Building No. 48 shall be procured (either through the efforts of KOOP or through the efforts of a third party) on or before May 15, 1978 and if the annual net rent to be realized by KPK under such lease, when capitalized at ten percent (10%), would produce a net gain (as defined above) of Five Hundred Thousand Dollars ($500,000), then and in such event KPK shall pay to KOOP the sum of Fifty Thousand Dollars ($50,000); ***.”

The agreement also provides that Koop would in no event be entitled to a fee in excess of $50,000, and that if the net gain to KPK under such sale or lease is less than $500,000 then Koop’s fee would be reduced pro rata at the rate of $12,500 for each reduction of $100,000 in gain (or 12.5%). “Net gain” is defined in the agreement as “sale price less basis.” The agreement does not define “net rent,” “sale price,” or “basis.” The parties apparently agree, however, that “sale price” under the contract here is equal to the average annual rental income of the property, capitalized at 10%. Thus, the formula for computing “net gain” and, ultimately, Koop’s commission under the agreement may be simply summarized in the following equations:

Net gain = (annual net rental income, capitalized @ 10%)-basis
Fee = $50,000-[($500,000-net gain) x 121/2%],

The parties do not dispute that Koop did in fact procure a tenant, Lifetime Foam Products, Inc. (Lifetime), prior to the May 15, 1978, deadline in the above-quoted provision. It is also undisputed that under the lease, Lifetime is to pay a total aggregate rent of $3,747,558.08 over 15 years’ time, or an average annual rent of $249,837.20. The dispute here, however, focuses upon the proper determination of “net annual rent” and “basis” in the above formula for computation of “net gain.”

In a letter to Brumley and KPK, dated July 28, 1978, Koop requested payment of $47,198 in commissions allegedly due under the contract. These calculations were prepared by Joseph Liss, a CPA and former treasurer of KPK. At trial Liss revised his calculations and testified that the total fee due Koop was $40,100 instead of $47,198. In arriving at this figure, Liss first computed “net gain” under the contract by taking the average annual rental income ($249,837.20) multiplied by 10 (the capitalization rate) to arrive at a figure of $2,498,372. From this amount he deducted $2,077,572, the figure which he determined to be the “basis” of the property, as defined by the Internal Revenue Code. According to Liss, the “basis” figure was calculated by taking the book value of the property as reflected in KPK’s books and deducting from this figure depreciation and other items, such as commissions and interest, which had been treated by KPK as assets for book purposes but not for income tax purposes. To this figure, Liss added the cost of certain improvements which were not yet reflected on KPK’s tax forms. Among these improvements were carpentry and electrical work, hardware, carpeting and painting. However, certain expenses were not included in Liss’ determination of either “basis” or “net rental income.” Among the excluded expenses were repairs presently being done by KPK to the roof, smoke vents, and plumbing system of Building 48.

At trial, Liss testified that he was not aware of any other definition or method of computing “basis” under generally accepted accounting principles. He also testified that his method of capitalizing annual rental income was in accordance with the method used by the mortgage banking industry in connection with leases. Liss stated that his method of computation was consistent with the policies of KPK and was in accordance with KPK’s tax returns. It was revealed at trial that Liss’ employment with KPK terminated in June 1978; however, he testified he prepared the computation at Koop’s request while he was still employed at KPK and had access to its books. Upon leaving KPK, Liss began his own accounting practice in a building which he owned with Koop.

Defendants claim that Koop is entitled to no fee under the contract and that Liss improperly determined “net gain.” They claim that the annual rental income utilized by Liss was a gross figure and not a net figure, as required by the contract. Thus, they reason the annual net rental income should reflect expenses required to be paid by KPK under the lease. Defendants further claim that Liss improperly relied upon the IRS’ definition of “basis” in computing “net gain,” and that the term “basis” under generally accepted accounting principles means the book value of the property as reflected in the books of the company. Defendants offered the testimony of three experts to support their position. Steven Glibkowski, controller for KPK at the time of trial, testified that Liss used an arbitrary method of capitalizing rents and deviated from KPK’s method of using present value to capitalize rents. Glibkowski stated that although he was aware of no writing by any accounting body which equates “basis” with book value, “everyone I have talked to when I mention the word basis, the first thing they say is book ***.” Edwin Sigel, a CPA and accountant for KPK, agreed that book cost was the proper method of determining “basis.” In the past Sigel worked for the Internal Revenue Service for approximately nine years, and testified that the books of some corporate taxpayers were not maintained in accordance with generally accepted accounting principles. He testified that those taxpayers were not violating the law. James Friedlieb, a CPA and graduate of Wharton Business School, testified that under the agreement the “net annual rentals” would be equal to the gross rentals, as determined by Liss, less the expenses of repairs and real estate taxes which KPK was required to pay under the initial period of the lease. According to Friedlieb, the “net annual rental” is therefore $243,832, and not $249,837.20 as calculated by Liss. He determined the capitalized net annual rent to be $2,438,323. To determine “basis,” Friedlieb took the book value of the property and added to that figure certain capital improvements which were also considered by Liss and added in Liss’ computation of “basis.” However, Friedlieb did not reduce this figure by tax deductible items, as did Liss. Thus, Friedlieb calculated the “basis” to be $2,366,244, which was $288,672 higher than Liss’ determination of “basis.” Accordingly Friedlieb determined Koop was entitled to no fee under the contract. Friedlieb’s calculations are summarized as follows:

Net gain = $2,438,323 (capitalized rents) - $2,366,244 (basis) = $72,079
Fee = $50,000 - [($500,000 - $72,079) x 121/2%]
Fee Deficiency = $3,490.13.

In arriving at his calculations, Friedlieb did not examine the books of KPK to determine how they were kept prior to March 9, 1978. He also stated there were other ways of determining “basis” other than on the books and records of the corporation. Finally, defendant Brum-ley testified he was aware prior to March 9, 1978, that KPK’s financial statements were not totally in accordance with generally accepted accounting principles.

Initially, defendants claim that because the evidence consists mainly of documents, this court is not bound by the trial court’s findings and may make an independent decision on the facts. (See National Boulevard Bank v. Citizens Utilities Co. (1982), 107 Ill. App. 3d 992, 438 N.E.2d 471; Carlson v. Carlson (1979), 74 Ill. App. 3d 673, 393 N.E.2d 643.) However, after stating this principle defendants rely primarily upon the testimony of their expert witnesses and not upon the documents themselves. While defendants correctly state this principle of law, the principle is inapplicable where extrinsic evidence is introduced to aid in interpreting a contract. (See Chicago Principals Association v. Board of Education (1980), 84 Ill. App. 3d 1095, 1099, 406 N.E.2d 82; Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 920, 326 N.E.2d 33.) Under these circumstances, the meaning of the language in the contract is a question for the trier of fact, whose determination will not be reversed, unless it is contrary to the manifest weight of the evidence. Chicago Principals Association. '

In the instant case, the terms “basis” and “net annual rent” were not defined in the contract. Thus, extrinsic evidence was properly introduced to ascertain the true intent of the parties with respect to these terms. (Chicago Principals Association v. Board of Education (1980), 84 Ill. App. 3d 1095, 1099, 406 N.E.2d 82.) The trial court concluded after hearing all the evidence that the parties intended the term “basis” to refer to the amount reflected on the tax returns of KPK. This finding is not against the manifest weight of the evidence. The evidence indicated that “basis” could be computed in several ways, and that although this definition did not follow generally accepted accounting principles, the method used by Liss was not in violation of the law and was, according to Liss, consistent with the policies of KPK in making similar computations in the past. This evidence was not rebutted by defendants. Further, Brumley indicated he was aware prior to March 9, 1978, that KPK, Seattle, and Buskirk did not always follow generally accepted accounting principles. The lease agreement in question was drafted by defendants’ attorneys and, therefore, could have contained a definition of the terms in question. Any ambiguity in the language of the contract should be resolved against KPK, the drafter of the document. Sanni, Inc. v. Fiocchi (1982), 111 Ill. App. 3d 234, 443 N.E.2d 1108.

With respect to the meaning of “net annual rent,” we agree with defendants that Liss' calculations were in error. Liss testified his computations were in accordance with KPK’s past method of capitalizing rents and were in accordance with the mortgage banking industry’s standards. However, Liss’ computation of “annual net rentals” did not take into account any expenses resulting from repairs to the building or payment of real estate taxes, both of which KPK was indisputedly required to pay under the terms of the lease. The term “net” is understood to mean that which is “[remaining after all necessary deductions have been made or all losses accounted for.” (American Heritage Dictionary of the English Language 882 (I960).) Black’s Law Dictionary 1192 (rev. 4th ed. 1968) defines “net income” as “[a]mount remaining after proper current charges have been made against gross income.” Thus, implicit in the definition of “net income” is the deduction of certain amounts from an initial sum. On appeal Koop contends that rather than subtracting certain expenses from the gross annual rental income to arrive at the net income figure, Liss added these same expenses to the “basis” of Building 48, thereby achieving the same result. However, the record does not support Koop’s position. While certain improvements were added to the book value to arrive at the “basis,” neither repairs nor real estate taxes were considered in Liss’ computations. In fact, the expenses for repairs were expressly excluded in the calculations. Thus, it is clear that Koop’s method of calculation was substantially different from that specifically called for under the contract. We therefore reverse and remand this portion of the court’s order for a recomputation of the fee due to Koop under the agreement.

Next we consider the propriety of the trial court’s rulings on counts III and IV of plaintiffs’ complaint. Count III sought to recover wages and expenses which Koop claimed were due him under his employment contracts with Seattle and Buskirk. Count IV sought a declaration that there was an oral agreement between the parties that certain “open account debts” which Koop admittedly owed defendants would be erased and forgiven. Defendants denied the existence of such an agreement. These same “open account debts” were also the subject of defendants’ affirmative defense and counterclaim to count III, in which they requested that Koop’s indebtedness be offset against any amounts which defendants might owe Koop under the employment contracts. The court awarded $6,100 to Koop pursuant to count III of the complaint, and ruled in favor of defendants on count IV, thereby finding there was no agreement to forgive Koop’s debts. However, no offsetting of these amounts was made by the court, and no ruling was made nor requested by defendants on either their affirmative defense or counterclaim.

Plaintiff Koop challenges the trial court’s finding that there was no oral agreement to erase his indebtedness. Defendants contend that the court erred when it failed to offset Koop’s indebtedness against the amounts owing to Koop under the employment contracts.

In this regard, we first consider the question whether the trial court correctly determined that there was no oral agreement to erase Koop’s indebtedness. At trial, it was established that Koop did in fact owe Buskirk $1,715.17, and KPK $9,039. Plaintiff contends that part of the consideration for his sale of the stock was the forgiveness of these debts. The evidence indicates that in fact this item was discussed prior to and at the closing of the transaction on March 9, 1978. However, defendant Brumley and KPK’s attorney, Donald Conley, testified that while there was some discussion of this item prior to" closing it was specifically rejected by KPK and not made a part of the stock sale transaction. Mr. Conley’s notes on the subject indicated that a question mark was placed in the margin alongside this item. This item was never contained in the written agreement executed on March 9,1978.

Whether an oral contract exists, its terms and conditions, and the intent of the parties are questions of fact to be determined by the trier of fact, in this case the trial court. (Hodgman, Inc. v. Feld (1983), 113 Ill. App. 3d 423, 447 N.E.2d 450; Emmenegger Construction Co. v. King (1982), 103 Ill. App. 3d 423, 431 N.E.2d 738.) The trial court’s determination in this regard should not be reversed unless it is contrary to the manifest weight of the evidence. Dutton v. Roo-Mac, Inc. (1981), 100 Ill. App. 3d 116, 426 N.E.2d 604.

In the instant case, the trial court’s determination that there was no oral contract to erase Koop’s debts was supported by the testimony of both Brumley and Conley and therefore will not be reversed by this court. Although defendants admitted in their pleadings that a portion of these “open account debts” had previously been erased from the books, there is no indication that this action constituted part of the consideration given for the stock sale transaction, as Koop claims. Further, it is well established that preliminary negotiations to a contract are generally merged into the final written agreement and that agreement is presumed to include all material terms. (World Insurance Co. v. Smith (1975), 28 Ill. App. 3d 1022, 1025, 329 N.E.2d 518.) We think that if the forgiveness of debts were intended to be part of the consideration for the sale, it would have been included in the written documents. Accordingly, we find no error in the court’s ruling.

Inasmuch as the trial court properly determined that the debts owed by Koop to KPK and Buskirk were not forgiven, it is clear that defendants were entitled to offset these amounts against the sums due to Koop under the employment contracts. It also appears that the court’s failure to offset the amount of the indebtedness, as requested in defendants’ affirmative defense and cross-claim, was inadvertent. We recognize that defendants’ failure to request a ruling on this issue would normally preclude its review on appeal. (Steven v. Falese Land Co. (1977), 50 Ill. App. 3d 231, 246, 365 N.E.2d 967.) However, because this case is being remanded on other grounds, and because the rights and liabilities of the parties on this issue have been fully litigated and determined, we consider this case an appropriate one in which to exercise the authority vested in us pursuant to Supreme Court Rule 366. (87 Ill. 2d R. 366; Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259, 263, 380 N.E.2d 1376; cf. Pickett v. First American Savings & Loan Association (1980), 90 Ill. App. 3d 245, 412 N.E.2d 1113.) Accordingly, we direct the trial court upon remand to enter an order offsetting Koop’s indebtedness against the sums found owing to him by defendants.

Defendants next contend that Koop, as an officer of KPK, misrepresented the financial condition of KPK prior to the July 6, 1977, and March 9, 1978, stock sales to Brumley. Defendants list seven points in their brief which they claim Koop misrepresented to them, and on which Brumley allegedly relied in his purchase of KPK stock. After reviewing the record in this regard, we find defendants’ contention to be without merit.

In the July 6, 1977, stock sales agreement between Brumley and KPK, KPK through Koop warranted that “[t]o the best of KPK’s knowledge and belief and based upon information presently available and without further investigation having been made, the balance sheets of KPK *** for the period from June 1, 1976, to April 30, 1977, *** fairly present the financial [position] *** of KPK ***.” (Emphasis added.) This provision incorporates by reference the financial statement of the company, dated April 30, 1977, which sets forth the various accounting policies and liabilities, both present and future, of KPK and its subsidiaries. At the closing date on March 9, 1978, Koop warranted in the stock redemption agreement between himself and KPK, that “to the best of his knowledge and belief there has been no substantial or material adverse change in the financial condition of KPK Corporation since June 1, 1977 that has not been communicated to *** Robert L. Brumley.”

At trial, it was established that prior to the closing, Brumley's attorneys investigated the financial condition of KPK. Brumley testified that the specific liabilities which are the subject of this appeal were not listed in the financial statement. However, he indicated that several of the liabilities were discussed prior to closing, but that the amounts in question were underestimated. Without discussing in detail each liability which Brumley now claims was undisclosed, suffice it to say we have reviewed the record and find that in each case Brum-ley was aware of the existence of these obligations, but failed to inquire or investigate into the extent of the liabilities. Brumley was also aware of KPK’s general financial difficulty and was aware that the financial statement proposed major reorganization. Certain portions of 'the statement provided that it was “subject to concurrence by independent certified public accountants”; however, Brumley never inquired as to the meaning of this provision and never hired an independent auditor to review the records. Note “N” of the statement provided that “[a] statement of changes in financial positions has not been prepared as required by generally accepted accounting principles.” No further statement was ever requested by Brumley.

On the basis of this record, it is clear that Brumley and his attorneys were adequately apprised of the possible liabilities of KPK and its subsidiaries as of June 1, 1977, and prior to closing on March 9, 1978. It is also clear that plaintiff Koop was not guaranteeing the exact amount of KPK’s liabilities, but only estimating “to the best of his belief and knowledge” KPK’s projected liability in certain areas. (See Murphy v. Walters (1980), 87 Ill. App. 3d 415, 423, 410 N.E.2d 107.) These areas were all subject to further investigation, especially with regard to any changes between June 1977 and March 1978, but no further investigation was conducted. There is no evidence in the record that any omissions or errors in the statement were intentional, and a knowing misstatement is one of the elements necessary to prove fraudulent misrepresentation. (Colonial Bank & Trust Co. v. Kozlowski (1982), 106 Ill. App. 3d 639, 435 N.E.2d 1251.) As majority shareholder of the corporation contemplating the purchase of the remaining stock of the company, Brumley clearly had equal access to the books and records of KPK prior to the closing on March 9, 1978. (Weigel v. O’Connor (1978), 57 Ill. App. 3d 1017, 373 N.E.2d 421.) Further, Brumley had a history of dealing with KPK and was aware that the company needed an infusion of capital at the time he purchased Koop’s shares of stock in March 1978. It therefore cannot be said that Koop misrepresented the financial condition of KPK.

Plaintiff Koop next contends that the trial court erred when it determined that there was no oral agreement to assign certain life insurance policies to Koop. Alternatively, he argues that if the trial court correctly decided this issue, then its award of damages to KPK in the amount of $49,000 was speculative and not supported by the evidence.

As with plaintiff’s claim regarding an oral agreement to forgive his indebtedness, plaintiff again refers to certain evidence in the record establishing that this issue was discussed prior to and at the closing on March 9, 1978. However, both defendant Brumley and his attorney, Mr. Conley, testified that no such oral agreement was reached. Because the record contains evidence which supports both parties’ positions, the resolution of this question was one of fact for the trial court. (MBL (USA) Corp. v. Diekman (1983), 112 Ill. App. 3d 229, 235, 445 N.E.2d 418.) We therefore affirm the trial court’s finding in this regard.

With respect to the proper measure of damages to be awarded to KPK, Koop claims that the court’s judgment did not take into account the fact that KPK was “max loaning” to pay for at least one of the policies. Defendants maintain, however, that the evidence established that after “max loaning,” KPK paid in excess of $49,000 in premiums.

The following evidence was adduced on this issue. The parties agreed to a preliminary injunctive order enjoining defendants from cancelling three New York Life Insurance policies “until such further order is entered.” The ownership of the policies was to remain in the possession of KPK, and Koop was authorized to designate the beneficiaries of the policies. Koop was to pay the premiums on the policy, but if he failed to pay KPK was required to make the payments. Koop was required to reimburse KPK for any payments which KPK made on his behalf. Subsequent to the injunction, Koop allowed two of the policies to lapse.

Pat Savaiano, life insurance agent for New York Life Insurance Company, testified that KPK paid some of the premiums on the lapsed policies by “max loaning.” “Max loaning” is a method of payment whereby the owner of the policy (here KPK), uses the future cash value of the policy to pay premiums. This results in essentially no cash outlay by the owner. Savaiano stated, however, that as the policy gets older there would probably be insufficient monies to use cash value as a method of premium payment. Savaiano testified that one policy had been paid by the “max loaning” method for about three years commencing around the end of 1978 or 1979. The injunction order was issued on April 4, 1979. On cross-examination, Sa-vaiano testified that as of March 8, 1978, several of the policies in question had no cash value. Finally, Brumley testified, over plaintiff’s objection, that KPK paid approximately $49,000 in premiums, and that some of those policies had a cash value.

On the basis óf this record, we are unable to ascertain what amount of the premiums paid, if any, were paid by “max loaning.” The evidence does not establish if the policies that were lapsed and for which premiums were paid were the same ones that had no cash value, so that “max loaning” would be impossible. Resolution of this factual question is essential in order to determine the precise amount of monies which KPK was in fact required to outlay to keep the policies in force. We further agree with plaintiff that Brumley’s mere assertion that $49,000 was expended, without some degree of documentation, is insufficient to establish a proper basis from which to determine damages. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 808, 443 N.E.2d 36.) Thus, upon remand, further evidence should be adduced to more accurately determine the actual damages suffered by KPK.

Koop contends that under the holding in Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 447 N.E.2d 288, damages were improperly awarded because defendants agreed to the injunctive order and did not establish that the order was wrongfully granted. This claim is without merit. Stocker is distinguishable from the instant case. In that case, defendants requested “damages for the wrongful entry of a temporary restraining order,” pursuant to sections 9 and 12 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, pars. 9, 12). Here, however, defendants were not seeking damages for the wrongful entry of a temporary restraining order, but were seeking reimbursement from Koop for premiums which Koop was required to pay undér the order. Stocker is therefore inapposite to the instant case.

Finally, we consider plaintiff’s argument that he was improperly denied attorney fees under “An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages” (Ill. Rev. Stat. 1981, ch. 13, par. 13), in connection with his claim for breach of his employment contracts with Seattle and Buskirk. Defendants maintain that Koop was not an “employee” within the meaning of that section. We agree.

“An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages’ ’ (111. Rev. Stat. 1981, ch. 13, par. 13) provides:

“Sec. 1. Whenever a mechanic, artisan, miner, laborer, servant or employee brings suit for wages earned and due and owing according to the terms of the employment, and establishes by the decision of the court or jury that the amount for which he has brought suit is justly due and owing, and that a demand was made in writing at least 3 days before suit was brought," for a sum not exceeding the amount so found due and owing, then the court shall allow to the plaintiff a reasonable attorney fee of not less than $10, in addition to the amount found due and owing for wages, to be taxed as costs of suit.”

In Reiss v. El Bauer Chevrolet Co. (1968), 96 Ill. App. 2d 266, 238 N.E.2d 619, relied upon by plaintiff, the court disagreed with previous cases holding that the term “employee” in the statute was limited to those “engaged in services like those of a mechanic, artisan, miner, laborer or servant.” (See, i.e., Buren v. Mercury Press, Inc. (1935), 280 Ill. App. 217.) The Reiss court held that the term included “all employees who must sue to obtain payment of their wages and who otherwise comply with the requirements of the statute.” (96 Ill. App. 2d 266, 271, 238 N.E.2d 619.) The court therefore concluded that two automobile salesmen could sue their employer for bonus wages. In Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118, the court limited the holding in Reiss to its facts and found that “[t]he word employee in the Act must *** be held to mean and include all persons hired to render services of the same general nature that are due from a mechanic, artisan, miner, laborer or servant.” (70 Ill. App. 3d 374, 377, 387 N.E.2d 1118.) Quoting People ex rel. Jacobs v. Coffin (1918), 282 Ill. 599, 606, 119 N.E. 54, 57, the court explained that “[t]he duties and services of a mere employee are purely ministerial, and he is not clothed with the discretion nor with the power to represent or bind the corporation.” (70 Ill. App. 3d 374, 377, 387 N.E.2d 1118; accord, Gasbarra v. Park-Ohio, Inc. (N.D. Ill. 1974), 382 F. Supp. 399; aff'd (7th Cir. 1976), 529 F.2d 529.) Noting that the statute is in derogation of the common law and therefore must be strictly construed (Waesch v. Elgin, Joliet & Eastern Ry. Co. (1962), 38 Ill. App. 2d 56, 60, 186 N.E.2d 369, 371), the court concluded that an elected official was not an employee under the statute. 70 Ill. App. 3d 374, 377, 387 N.E.2d 1118.

In the instant case, Koop was suing for wages promised him under two employment contracts with Seattle and Buskirk for which he was to act as a consultant to aid Brumley whenever needed in the day to day operations of the companies. During his employment, Koop was not an officer of these corporations, and had no authority to bind them on any matter. In this respect, he was more in the nature of an “employee” than was the city clerk in the Lites case. However, the services provided by Koop to defendants under the contract were not of the same general degree, kind and nature that are due from a “mechanic, artisan, laborer or servant.” Koop’s position was more in the nature of an independent contractor, and there is no precedent for the proposition that this type of employment was contemplated by the legislature in the statute in question. We therefore hold that Koop was not an “employee” within the meaning of “An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages” (Ill. Rev. Stat. 1981, ch. 13, par. 13), and was therefore not entitled to attorney fees under the statute.

In accordance with the foregoing, the judgment of the circuit court of Kane County is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

VAN DEUSEN and UNVERZAGT, JJ., concur.


author: JUSTICE LINDBERG

text:
      In re L.F., a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. L.F., Respondent-Appellant).
    Second District
    No. 82—770
    Opinion filed November 4, 1983.

      Paul E. Gaziano, of Remencius, Liebovich & Gaziano, of Rockford, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent-minor L.F. was charged with committing the offense of residential burglary (111. Rev. Stat. 1981, ch. 38, par. 19 — 3) in a delinquency petition. At the adjudicatory hearing, it was established that Eddie Torrance and a friend arrived at Torrance’s Rockford home after work on March 11, 1982, to find that the home had been broken into and that money, jewelry, and whiskey were missing. Torrance also found a hammer in the house which was given to the police and introduced into evidence.

Two Rockford policemen testified regarding their interviews with the minor and statements he gave to them. In both statements the minor admitted that he had watched Torrance leave his house to go to work and then broke into the house and took money, a gun, and some liquor. He also stated in both that the homeowner owed him money. In the second statement, he correctly identified Torrance’s place of work, reported his use of a hammer to break in and that he left it behind, stated that he also took jewelry, and described the layout of the house. Although both original statements contained references by the minor to being “on a furlough from Joliet,” these were excised when the statements were introduced into evidence. The minor’s indication in the second statement that he broke into Torrance’s home in 1980 was not removed.

An employee of the Department of Corrections and another Rockford policeman testified regarding the minor’s May 21, 1982, escape from custody while on the way to be arraigned on the present charge and his capture the next day. The minor’s only evidence was the testimony of the Rockford policemen who responded to the Torrance break-in that Torrance at that time reported that nothing was missing.

The jury found the minor to be delinquent. As the State proved to the court two previous adjudications for felony offenses, the trial court sentenced him to confinement until his 21st birthday, pursuant to the Habitual Juvenile Offender Act (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12). He appeals. .

Admission of Evidence of Other Crimes

The minor first contends that prejudicial error occurred when the trial court permitted the admission of evidence of other crimes committed by him. The minor specifically points to testimony regarding the fact that he had escaped from the custody of the Department of Corrections while being returned to Rockford for arraignment on the charge involved in this case (see Ill. Rev. Stat. 1981, ch. 38, par. 36 — 1) and to that portion of the minor’s statement of March 15, 1982, in which he related that he had broken into the same house on a previous occasion (see Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3).

Regarding the testimony of the minor’s escape, evidence of escape or attempted escape from custody by an accused is admissible as a fact raising a presumption of guilt of the crime charged, even if the accused is being held on more than one charge. (People v. Yonder (1969), 44 Ill. 2d 376, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L. Ed. 2d 270, 90 S. Ct. 1094; People v. Robinson (1980), 91 Ill. App. 3d 1138, 415 N.E.2d 585.) Therefore, there was no error in the admission of the escape testimony.

Regarding that portion of the minor’s statement indicating a prior break-in, the trial court admitted it because it “not only shows his intent, but impeaches his statement in the earlier statement, his remark in the earlier statement to [Officer] Piccirilli that this was an individual who owed him money.” Although it is generally true that evidence of crimes other than the one for which the accused is being tried is not admissible, there are exceptions, including evidence of separate offenses which also tend to prove a fact in issue or which go to show motive, intent, identity, absence of mistake or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 455.) In fact, it has been broadly held that evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. (62 Ill. 2d 448, 455.) On this appeal, the State seeks to justify the admission of the statement regarding the prior break-in as relevant to motive and intent.

The evidence in question is a portion of defendant’s March 15, 1982, statement to Officer Hoffman. After describing the manner of the break-in at issue, defendant stated the following:

“As soon as you walk in you turn left and there is a closet. Thats [sic] the first place I went because the last time I broke in there, there was [sic\ about $800.00 or $900.00 in there. There was [sic] also two pistols in there at that time. It was 1980 when I broke in that time.”

These remarks tend to show that defendant’s intent upon breaking in was to obtain money and possibly goods, such as the pistols, just as he had been able to do in the past. The intent to commit a felony or theft is a necessary element of the offense of residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3(a).) Therefore, the remarks were relevant to proof of the charged offense. This is especially true here where the minor, in other parts of his statements, averred that he broke into the victim’s home to take money that the victim owed to him. In People v. Henderson (1974), 18 Ill. App. 3d 457, 309 N.E.2d 242, evidence of a previous burglary by the defendant of the same premises three days earlier than the charged burglary was admissible to prove intent where statements made by the defendant to police had indicated a motive in the break-in to assist a woman who had cried for help. Similarly, the minor’s remarks here tend to make an innocent motive less likely and are therefore probative on the issue of the minor’s purpose. Furthermore, the challenged remarks also reveal the reason why defendant was aware of the layout of the burglarized premises, another relevant factor. (See People v. McLain (1975), 32 Ill. App. 3d 998, 337 N.E.2d 82.) Thus, there was no error in the admission of the minor’s reference to the previous break-in.

Defendant cursorily states that “the State ought to have been required to establish the occurrence of the other crime,” citing People v. Gugliotta (1980), 81 Ill. App. 3d 362, 401 N.E.2d 262. We find that defendant has waived this argument because, although employing a motion in limine, an oral objection and a post-trial motion to challenge the use of his statement regarding the prior burglary, at no point was this particular reasoning brought before the trial court. See People v. Curry (1973), 56 Ill. 2d 162.

In any event, no error was committed. People v. Gugliotta (1980), 81 Ill. App. 3d 362, 401 N.E.2d 262, stated the rule that evidence of other crimes cannot be admitted even for a proper purpose until it is shown that a crime actually took place and that the defendant committed it or participated in its commission. (81 Ill. App. 3d 362, 365, 401 N.E.2d 262, 264.) The other crimes in Gugliotta were fires which the court held were not shown at trial to have been set by the defendant nor even to be of incendiary origin. Although it must be shown that the other crime occurred and that the accused committed it or participated in its commission, proof of the other crime need not be beyond a reasonable doubt. (People v. Walters (1979), 69 Ill. App. 3d 906, 387 N.E.2d 1230.) In Walters, the court held there to be sufficient evidence of the occurrence of the other crimes and the defendant’s participation in their commission. The only evidence of the other crimes was a police officer’s testimony that he had investigated robberies and murders which occurred on certain dates and the statements of the defendant regarding his participation in those crimes. Here, the only evidence of the other crime is the minor’s own statement; however, although there is no corroborating evidence such as the testimony of the fact of police investigation as in Walters, the minor's admission of the prior burglary is sufficient evidence of the occurrence of the crime and the minor’s participation in it to allow use of the otherwise admissible statement.

Even if error were found in the admission of evidence of other crimes, the error would be harmless. Where the evidence of the defendant’s guilt is overwhelming, an error in the admission of evidence of other crimes committed by the defendant is harmless. (See People v. Carlson (1982), 92 Ill. 2d 440; People v. James (1981), 100 Ill. App. 3d 884, 427 N.E.2d 248.) Here, the minor provided the police with two statements detailing how he had broken into the victim’s home and taken liquor, jewelry, money and a gun. There were also numerous items of corroborating evidence, such as the victim’s allegations of property taken, the details of the burglarized premises, and the hammer that the minor indicated he had left behind. In light of the minor’s statements and the corroborating evidence, the evidence of the minor’s guilt is so overwhelming as to render any error in the admission of evidence of other crimes to be harmless.

Constitutionality of the Habitual Juvenile Offender Act

The minor contends that the trial court erred in ruling that the State may impeach him through evidence of prior juvenile adjudications. Although section 5 — 12 of the Juvenile Court Act (111. Rev. Stat. 1981, ch. 37, par. 705 — 12), commonly referred to as the Habitual Juvenile Offender Act (hereinafter Act), permits that sort of impeachment under certain conditions, the minor contends that the statute is unconstitutional as a legislative encroachment on a judicial function. He argues that the applicable rule is that established in People v. Montgomery (1971), 47 Ill. 2d 510, and that the statute is void because it conflicts with that rule.

The challenged part of the Act is that paragraph of subsection (c) of section 5 — 12 which reads as follows:

“No prior adjudication shall be alleged in the petition, and no evidence or other disclosure of such adjudication shall be presented to the court or jury during any adjudicatory hearing provided for under this section, unless otherwise permitted by the issues properly raised in such hearing. In the event the minor who is the subject of these proceedings elects to testify on his own behalf, it shall be competent to introduce evidence, for purposes of impeachment, that he has previously been adjudicated a delinquent minor upon facts which, had he been tried as an adult, would have resulted in his conviction of a felony. Introduction of such evidence shall be according to the rules and procedures applicable to the impeachment of an adult defendant by prior conviction.” Ill. Rev. Stat. 1981, ch. 37, par. 705— 12(c).

Thus, in proceedings against the minor prosecuted as a habitual juvenile offender, the minor may be impeached by prior juvenile adjudications subject only to the rules of evidence for impeaching an adult criminal defendant by prior convictions.

People v. Montgomery (1971), 47 Ill. 2d 510, is the case which established the judicial rule for impeachment of witnesses through prior convictions. Montgomery endorsed the then-proposed Federal Rule of Evidence 609 (51 F.R.D. 391) as the rule for Illinois. While that rule establishes certain guidelines for the admission of convictions for impeachment purposes, subsection (d) of Rule 609 categorically bars the use of juvenile adjudications when the witness is the accused in a criminal prosecution. Although the issue in Montgomery did not involve subsection (d) of Rule 609, subsequent cases have interpreted Montgomery as endorsing all of that rule (People v. Yost (1980), 78 Ill. 2d 292, 296), including subsection (d) (People v. Puente (1981), 98 Ill. App. 3d 936, 940, 424 N.E.2d 775, 779).

The central problem involved in the resolution of this issue is whether the rule of Montgomery is to be applied to juvenile court proceedings. The minor argues that Montgomery is to be applied directly to this type of case, resulting in a bar against the use of his prior adjudications for impeachment. Because the statutory provision would permit a different result in a judicial matter, he contends, it is void as unconstitutional. The State argues, on the other hand, that the courts have never intended to apply Montgomery to juvenile proceedings. The Act legislatively incorporates Montgomery only to the extent that its rule on the use of prior convictions, but not the use of prior juvenile adjudications, in criminal cases is to be applied to the use of prior adjudications in habitual juvenile offender cases.

The Montgomery opinion itself did not limit its rule to criminal cases, stating that “the provisions of this Rule should be followed in future cases.” (People v. Montgomery (1971), 47 Ill. 2d 510, 519.) In Knowles v. Panopoulos (1977), 66 Ill. 2d 585, the supreme court held that Montgomery is applicable to civil cases as well as criminal. However, no case has been found which either applies or refuses to apply the rule of Montgomery to proceedings under the Act. Although “the rules of evidence in the nature of criminal proceedings” are generally applicable in delinquency cases, this is due to such a provision in a different section of the Juvenile Court Act. Ill. Rev. Stat. 1981, ch. 37, par. 704 — 6(1).

That evidentiary rules in delinquency cases, subject to constitutional restraints, should be determined by the Juvenile Court Act rather than by general criminal case rules enunciated by the judiciary is in conformity with the logic and purpose of the Juvenile Court Act, which are distinctly different from those of the Criminal Code of 1961. As stated in In re Beasley (1977), 66 Ill. 2d 385, cert. denied (1978), 434 U.S. 1016, 54 L. Ed. 2d 761, 98 S. Ct. 734:

“Section 2 — 9 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702 — 9) clearly indicates that proceedings under the Act are not criminal. Although such a proceeding retains certain adversary characteristics, it is not in the usual sense an adversary proceeding, but it is one to be administered in a spirit of humane concern for and to promote the welfare of the minor as well as to serve the best interests of the community.” 66 Ill. 2d 385, 389.

In In re Beasley (1977), 66 Ill. 2d 385, 389, the supreme court held that its promulgated rule relating to standards for acceptance of guilty pleas (58 Ill. 2d R. 402), was intended to apply only to criminal cases and not to juvenile delinquency proceedings. This was despite the fact that the Juvenile Court Act does not contain its own rule relating to acceptance of guilty pleas. In the present case, the Juvenile Court Act has a specific evidentiary rule on the subject at issue.

In People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, the supreme court rejected several constitutional challenges to the Act. While none of these challenges was framed precisely the same as that here, the court upheld various provisions of the statute as valid means to serve the purposes of the juvenile court system. The impeachment usage of prior adjudications, the provision at issue here, was upheld despite a contention that it violated the fundamental fairness concept of the due process clause in that it improperly apprised juries of those adjudications and potentially influenced the jury’s determination of whether the offense at issue had been committed. In rejecting that argument, the court expressed approval of the provision with the following language:

“We acknowledge that the accused’s credibility will be damaged if he chooses to testify and the prosecution introduces evidence of the prior adjudications in impeachment, but this is the purpose of impeachment regardless of the context in which it is done and the consequences that result. It is improper prejudice with which we are concerned, and if the Act is correctly applied, this will not result. The Act is carefully drafted to avoid unfair prejudice ***. By providing these safeguards, the Act actually goes beyond those required by the United States Supreme Court in Spencer [Spencer v. Texas (1967), 385 U.S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648].” 83 Ill. 2d 67, 76-77.

Since there is no indication that the supreme court intended Montgomery to directly apply to juvenile proceedings, this court will not presume such an intent, especially in light of the presumption of validity of statutes (Gill v. Miller (1982), 94 Ill. 2d 52; Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42), the court’s characterization of the subject provision in People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, as providing sufficient safeguards so as to avoid improper prejudice, and the different purposes of the Criminal Code of 1961 and the Juvenile Court Act. If People v. Montgomery (1971), 47 Ill. 2d 510, does not apply to delinquency proceedings except in the manner provided by the Act, there is no conflict between Montgomery and the Act.

Although the minor does not argue the unconstitutionality of the Act except through its alleged nonconformity to Montgomery, an improper legislative encroachment upon a judicial function is possible even in the absence of conflict with case law. With regard to laws governing judicial practice, the General Assembly does not have the power to enact laws which unduly infringe upon the inherent powers of the judiciary or conflict with a rule of the supreme court. (People v. Youngbey (1980), 82 Ill. 2d 556.) None of the promulgated Supreme Court Rules conflicts with the subject statutory provision. With regard to inherent judicial powers relating to evidentiary matters, it has been held that the legislature may not declare the weight to be given to evidence or what evidence shall be conclusive proof of an issue of fact. (Alton R.R. Co. v. Illinois Commerce Com. (1943), 382 Ill. 478; People v. Buford (1982), 110 Ill. App. 3d 46, 441 N.E.2d 1235.) The subject provision attempts to do neither. Thus, even aside from the rule of Montgomery, we fail to see how the challenged statute encroaches upon an exclusively judicial function.

An alternative argument suggested by the State is that, even if the rule of Montgomery were intended to apply to juvenile proceedings, a literal reading of proposed Rule 609(d) would still allow the impeachment use of the minor’s prior adjudications. This is because the rule expresses a categorical bar on such evidence only if the witness is the “accused” in a criminal case. (See Advisory Committee’s Note to Subdivisions (d) of Rule 609 in Appendix 6 of Am. Jur. 2d, New Topic Service: Federal Rules of Evidence, at 501.) Although Rule 609 as finally adopted by Congress would permit some discretion in admitting prior adjudications for impeaching witnesses other than the accused only in criminal cases (i.e., the categorical bar applies for all witnesses in noncriminal cases) (Fed. R. of Evid. 609(d)), it is the 1971 draft version, proposed by the Supreme Court, which was endorsed by the Illinois Supreme Court in Montgomery and which continues to be the rule in Illinois. (People v. Yost (1980), 78 Ill. 2d 292, 295-96.) Since a minor prosecuted under the Act is not an “accused” in a criminal case, the alternative argument goes, the impeachment usage of prior adjudications is permissible under proposed Rule 609 (d) “if conviction of the offense would be admissible to attack the credibility of an adult and the judge is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.”

The problem with the adoption of this approach is that if the supreme court had intended that proposed Rule 609 apply in delinquency cases notwithstanding contrary statutory provisions, its purpose would most probably be to grant minors prosecuted for delinquency the same protections given to adults “accused” of criminal offenses. Furthermore, while this approach does permit some discretion in the admission of prior adjudications, it does so under a much stricter standard than that used to admit evidence of prior convictions. It is the more liberal standard that is employed by subsection (c) of the statute; the parties have not addressed whether admission of the prior adjudications would have been proper under the stricter standard found in proposed Rule 609(d).

The minor also contends that, if the statute does not improperly impinge upon the judicial power, it is unconstitutional under the equal protection clause (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. 1, sec.2). The basis of this equal protection argument is that the statute would permit the impeachment usage of prior adjudications against a minor prosecuted as a habitual juvenile offender while such usage against a minor prosecuted as an adult is prohibited. Because under certain conditions a minor may be prosecuted as an adult (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7), this same argument could just as well be made against any of the various provisions of the Juvenile Court Act which provide for different procedures and dispositions than are possible in criminal prosecutions. However, the fact that a minor may be treated as an adult in some cases and not in others, pursuant to the standards set out in section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7), does not deny him equal protection under the law. (People v. Sprinkle (1972), 4 Ill. App. 3d 6, 280 N.E.2d 29, aff’d (1974), 56 Ill. 2d 257, cert. denied (1974), 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650.) In People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 80, the supreme court held that it was not a violation of equal protection rights for the Act to permit a potentially longer period of confinement than was possible for a habitual offender prosecuted under adult criminal laws. Likewise, it was not an equal protection violation for the Juvenile Court Act not to provide for jury trials in delinquency prosecutions. (In re Presley (1970), 47 Ill. 2d 50.) Thus, a minor prosecuted as an adult, who is not subject to the impeachment use of prior adjudications, must meet the guidelines of section 2 — 7 and is subject to very different dispositions than is a minor prosecuted as a habitual juvenile offender, who may be so impeached. We find no equal protection violation.

Finally with regard to the minor’s second allegation of error, he does not demonstrate any prejudice resulting from the alleged error. Evidence of the prior adjudication was not introduced because the minor chose not to testify purportedly for fear of the prejudice resulting from the impeachment. As already noted, evidence of the minor’s guilt was overwhelming. The minor did not, either at trial or on appeal, suggest any testimony which he might have given that would have created a reasonable doubt as to his guilt. Where a defendant is improperly impeached on cross-examination through evidence of a prior conviction, reversal is not required unless the error has deprived the defendant of substantial justice or influenced his determination of guilt. (People v. Madison (1974), 56 Ill. 2d 476; People v. Adams (1982), 106 Ill. App. 3d 467, 435 N.E.2d 1203.) In Madison, as in the present case, the defendant’s inculpatory statement and substantial circumstantial evidence clearly established his guilt. (56 Ill. 2d 476, 489.) There could be no greater prejudice here where the minor voluntarily declined to testify in order to prevent the State’s use of the evidence of prior adjudications which could not have influenced the determination of guilt.

Denial of a Hearing on the Escape Statement

The minor’s final contention is that the trial court erred in refusing to hear his motion to suppress a statement that he had made to Officer Mary Denton relating to his escape on May 21, 1982. Although the trial court had originally granted the minor’s motion to exclude evidence of the escape, it later reversed its ruling on the State’s motion to reconsider. The minor moved to suppress evidence of the statement made to Officer Denton, alleging inter alia that the statement was involuntary. The State indicated that it would not use that statement in its direct case, but reserved the right to use it at a later time. The trial court refused to hear the issue at that time, indicating that it would address it when it had to, but that it would not take the time for a hearing on an issue which might be mooted. The minor then moved in limine to prevent use of the statement for impeachment purposes and the court denied the motion. At the adjudicatory hearing, the minor did not testify, and evidence of the statement made to Officer Denton was never introduced.

The question to be resolved is whether the trial court was obligated to hear the motion prior to trial. The minor argues that such a hearing was necessary so that his constitutional rights would not be violated and so that he might be able to prepare his defense. However, while a defendant has a constitutional right at some stage of the proceedings against him to object to the use of his confession and to have a fair hearing and a reliable determination upon the issue of voluntariness (Jackson v. Denno (1964), 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774; People v. Bell (1977), 50 Ill. App. 3d 82, 365 N.E.2d 203), the minor was not denied that hearing “at some stage.” Rather, he was only denied a hearing prior to the presentation of his case. The fact that no hearing was held was due to his choice not to testify, rendering moot the issue of admissibility of impeachment evidence.

As to the minor’s ability to prepare his defense, we can find no basis for requiring the hearing on the impeachment use of his allegedly involuntary statement before he testified. The statute the minor cites, section 114 — 11 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 114 — 11), prescribes the procedure for a motion to suppress evidence of a confession on the ground that it was not voluntary. Although section 114 — 11(c) requires the trial court to conduct a hearing if the motion is sufficient, no particular time for the hearing is mandated.

Cases have held that a trial court may properly refrain from making a ruling on the admissibility of a defendant’s prior convictions for impeachment purposes until after the defendant has testified, even though the withholding of a ruling makes defense strategy more difficult. (People v. Rose (1979), 75 Ill. App. 3d 45, 52, 393 N.E.2d 698, 703-04; People v. Hunter (1978), 61 Ill. App. 3d 588, 598, 376 N.E.2d 1065, 1072; People v. Barksdale (1974), 24 Ill. App. 3d 489, 496, 321 N.E.2d 489, 494-95.) However, Rose, Hunter, and Barksdale might be distinguished from the present case in that those cases involved prior convictions instead of allegedly involuntary statements as the impeachment evidence at issue. Balancing probativeness against unfair prejudicial effect is a factor in determining the impeachment admissibility of prior convictions. (See People v. Montgomery (1971), 47 Ill. 2d 510.) Rose, Hunter, and Barksdale reasoned that a trial court might better be able to ascertain the probativeness and prejudicial effect of the challenged evidence after it has heard the defendant’s testimony. That same reasoning is not applicable with regard to a hearing solely on voluntariness of an out-of-court statement, where the factors for that determination (see, e.g., Brown v. Illinois (1975), 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 427, 95 S. Ct. 2254, 2261-62; People v. Washington (1980), 90 Ill. App. 3d 631, 634, 413 N.E.2d 170, 172, cert. denied (1981), 454 U.S. 846, 70 L. Ed. 2d 132, 102 S. Ct. 162) may easily be ascertained without first hearing the defendant’s trial testimony.

In any event, the minor has not shown any prejudice resulting from the trial court’s refusal to hear its motion prior to his testifying. As noted in each of the prior two issues, the evidence of the minor’s guilt was overwhelming. The challenged statement was not introduced. If the requested hearing had been held before trial, and the statement suppressed, the minor does not suggest what unimpeached testimony he might have provided. Moreover, the introduction of the statement by the minor relating to his escape would have been harmless in that two State’s witnesses- had already testified about the escape. See People v. Garcia (1981), 95 Ill. App. 3d 792, 800-01, 420 N.E.2d 482, 489.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE REINHARD

text:
    DANIEL B. PACE et al., Plaintiffs-Appellants, v. THOMAS A. McCLOW, Public Adm’r of the Estate of Scott A. Peterson, Deceased, Defendant-Appellee.
    Second District
    No. 82—982
    Opinion filed November 3, 1983.

      L. Lee Burks, Jr., of Park Forest, for appellants.
    Gary K. Mickey, Donald L. Puckett, and Bernard K. Weiler, all of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, and John P. Callahan, of Geneva, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Daniel B. Pace, Leslie M. Pace, and Rachel Harris, appeal from a judgment, which was entered on a directed verdict at the close of plaintiffs’ case, in favor of defendant, Thomas A. McClow, the public administrator of the estate of Scott A. Peterson, deceased.

Plaintiffs sought to recover damages from defendant for injuries they had sustained in an automobile accident. Plaintiffs alleged in their complaint that Peterson had negligently failed to keep a proper lookout while driving the automobile in which they were riding and that he had negligently operated this motor vehicle at a speed greater than was reasonable. They alleged that they were injured as a result of these negligent acts. The trial court, viewing the evidence most favorably to the plaintiffs, found that insufficient evidence had been presented by plaintiffs for a jury to find that Peterson had been negligent. The trial court, therefore, directed a verdict for defendant at the close of plaintiffs’ case.

Plaintiffs’ raise the following issues on appeal: (1) whether the trial court ruled correctly in directing a verdict for defendant at the close of plaintiffs’ case, and (2) whether the trial court ruled correctly on a defense objection which resulted in the exclusion of certain photographic evidence offered by plaintiffs.

Only the evidence relevant to the issues raised on appeal will be set out.

Carl Olson, a former State Trooper, testified that while he was employed by the State police he investigated an automobile accident on northbound 1-57 near Flossmoor Road at approximately 2:30 a.m. on January 17, 1977. When he arrived at the scene, he found a Dat-sun, the car in which plaintiffs were riding, sitting in the middle of the northbound lanes with extensive front end damage. No other vehicle was found. Olson, found two pieces of iron at the scene. One was 30 feet in front of the car while the other was 50 feet in front. No skid marks were found. Olson testified that the pavement was dry, the sky was clear, and the road was straight and level. He testified that there were 50 foot lights on either side of the highway.

Olson also testified that plaintiffs’ exhibit No. 3, a photograph, was a fair and accurate portrayal of Flossmoor Road at 1-57 at night. He testified that another photograph, plaintiffs’ exhibit No. 4, was a fair and accurate representation of 1-57 approaching 1-80 as it was in 1977. These exhibits were denied admission into evidence on defendant’s objection.

Trooper James Collier’s testimony corroborated Olson’s testimony concerning the weather conditions and physical setting. Trooper Collier testified that the pavement was dry and that it was a clear night. He stated that the roadway was straight and level and lighted by mercury vapor lights. When he arrived at the accident scene, there was no one there who witnessed the accident.

Richard Ferrington testified for plaintiff that he was a tow truck operator who had been called to the accident scene. He testified that there had been light snow on the night of the accident and that the pavement was slick that night.

Dr. James Lawrence Frost testified for plaintiffs that he was a forensic pathologist who examined Peterson’s body and the car in which Peterson and plaintiffs had been riding. He rendered an opinion that Peterson was behind the wheel of the car at the time of collision because Peterson had injuries, which in Dr. Frost’s opinion, had been caused by Peterson’s body hitting the steering wheel. It was also his opinion that Peterson’s right foot was firmly upon the gas pedal at the time of impact. This opinion was based upon his finding an imprint, which matched the configuration of the gas pedal cover, in the bottom of Peterson’s right boot. This configuration was different from the configuration of the brake and clutch pedal covers.

James Stannard Baker, an accident reconstruction expert, gave an opinion based on the facts of this case that the car driven by Peterson crashed into the rear of a semitrailer. He based this opinion on the fact that the iron parts found on the roadway were “typical of the rear bumpers that are put on semi trailers ***,” although he later admitted that that kind of bumper was also put on trucks other than semis, but “not very often.” He gave his opinion that this semitrailer truck was moving at the time of impact, based on the location of the parts found on the roadway and the nature of the marks left by the semitrailer truck wheel on the car. His opinion was that the semitrailer truck was moving forward at the time, because the car bumper was pulled up rather than down. He rendered an opinion that the car was traveling 25-35 miles per hour faster than the semitrailer truck at impact and that the after collision speed of the car and the truck was 40-50 miles per hour.

On cross-examination he gave his opinion that the semitrailer truck’s speed at collision was 40-50 miles per hour. This speed was calculated based on the relative weights of the vehicles. He estimated that the Datsun weighed about 2000 pounds and determined the 40-50 miles per hour speed of the semitrailer truck by using a possible range of weights for the truck of 30,000 to 80,000 pounds. This range was based on what the truck could have weighed empty to its possible loaded weight. He stated that he did not know the actual weight of the semitrailer truck and that this was the first time he had ever done such a calculation. He admitted that in his deposition he had said he could not determine the speed of the semitrailer truck at the time of collision but that he had developed the formula for making such a calculation during the two days before he testified.

Other evidence was presented, but it is not relevant to the issues raised on appeal. None of the plaintiffs, who were injured, could recall the accident, nor did anyone else testify that they witnessed the accident. At the close of plaintiffs’ case the trial court directed a verdict for defendant.

Plaintiffs maintain that the trial court improperly directed a verdict for defendant at the close of plaintiffs’ case. They contend that the evidence presented was sufficient to present a prima facie case of negligence. They maintain that the evidence was sufficient for the jury to conclude that Peterson was driving in excess of the speed allowed by statute and that he failed to keep a proper lookout.

A verdict should be directed “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.) Defendant is not entitled to a directed verdict at the close of plaintiffs’ case unless the evidence, when viewed most favorably to the plaintiff, totally fails to establish one or more of the necessary elements of the plaintiffs’ cause of action. (Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 1071, 436 N.E.2d 623; see also Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 720, 356 N.E.2d 445.) Defendant contends that the plaintiffs failed to introduce evidence tending to prove that Peterson breached his duty of care to plaintiffs.

Negligence may be proved by either direct or circumstantial evidence. (Mort v. Walter (1983), 98 Ill. 2d 391, 396; Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86, 368 N.E.2d 1299.) Circumstantial evidence is the proof of certain facts and circumstances from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. (Devine v. Delano (1916), 272 Ill. 166, 179-80, 111 N.E. 742; Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 408-09, 444 N.E.2d 220.) Defendant maintains that a fact cannot be established by circumstantial evidence unless the circumstances are of such a nature and so related to each other that the proposed conclusion is the only one that can be drawn. (See Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 486, 414 N.E.2d 1079.) However, “the use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion.” (Mort v. Walter (1983), 98 Ill. 2d 391, 396.) Rather, “circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom [citations], and the facts established by such inferences are considered when an issue is decided as a matter of law or a verdict is directed.” (98 Ill. 2d 391, 396-97; see also Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 409, 444 N.E.2d 220.) Thus, the inquiry here is whether plaintiffs presented sufficient circumstantial evidence from which a jury could reasonably infer that Peterson was negligent.

Plaintiffs contend that the jury could infer from the evidence that Peterson was violating the speed statute. Section 11 — 601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 601) provides, in part, that:

“(a) No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. ***
(b) No person may drive a vehicle upon any highway of this State at a speed which is greater than the applicable statutory maximum speed limit established by paragraphs (c), (d), (e), (f) or (g) of this Section, by Section 11 — 605 or by a regulation or ordinance made under this Chapter.”

The speed limit at the point where this accident occurred was 55 miles per hour. Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 601(d).

It has been held that proof of speed in excess of the speed limit is prima facie evidence of negligence. (Matesevac v. County of Will (1981), 93 Ill. App. 3d 280, 285, 416 N.E.2d 807; Penzin v. Stratton (1974), 26 Ill. App. 3d 475, 479, 325 N.E .2d 732.) Excessive speed may be proved by circumstantial evidence. (26 Ill. App. 3d 475, 479, 325 N.E.2d 732.) Thus, if the circumstantial evidence was sufficient to allow the jury to infer Peterson was driving in excess of the speed allowed by statute (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 601), then the directed verdict was improper.

Plaintiffs’ reconstruction expert testified that at impact in a rear-end collision the following vehicle slows down while the preceding vehicle is speeded up until they are traveling the same speed. At this point, the vehicles will then separate. He testified that the after-collision speed of both vehicles here was 40-50 miles per hour and that the car driven by Peterson was traveling 25-35 miles per hour faster than the semitrailer truck at impact. He stated that the truck was moving forward at the point of impact. On cross-examination he testified that he believed the truck was traveling between 40 and 50 miles per hour at the time of the collision.

While defendant argues, and the trial court found, that the testimony as to speed was based on speculation, we hold that the use of an estimated weight for the Datsun and a range of possible weights for the semitrailer truck, which according to Baker’s unrebutted testimony was a common practice in engineering, was not improperly speculative. Thus, the calculations Baker performed with this data to determine the speed of the truck were proper and his opinion on the truck’s speed could not be disregarded by the trial court in ruling on the directed verdict motion. While the trial court appeared to discount Baker’s opinion that the bumper was from a semitrailer truck, an opinion upon which Baker made his weight estimates and, ultimately, his speed calculations, there was a sufficient foundation that the bumper came from a semitrailer truck so that this evidence could not be disregarded. Where there is physical evidence present sufficient to provide the basic data needed, an expert may analyze and reconstruct the occurrence. (Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 516, 211 N.E.2d 733.) The jury still may accept or reject such testimony. 33 Ill. 2d 514, 516, 211 N.E.2d 733.

Viewing all of the evidence most favorably to plaintiffs, the evidence presents a question for the jury whether defendant was violating the speed laws. From the evidence, the jury could reasonably conclude that Peterson was driving at least 65 miles per hour (i.e., 25 miles per hour faster than the truck’s 40 miles per hour). Because the evidence could support a finding that defendant was violating section 11 — 601(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95½, par. 11 — 601(b)), prima facie evidence of negligence was presented. Matesevac v. County of Will (1981), 93 Ill. App. 3d 280, 285, 416 N.E.2d 807.

Additionally, section 11 — 601(a) provides that a speed greater than that which is “reasonable and proper” is also a violation of law. While

the police officers testified that the road was dry, Ferrington, the tow-truck operator, testified that the pavement was slick. This evidence, along with the testimony concerning the speed differential between the two vehicles and their after-collision speed, was sufficient to put the question to the jury whether Peterson was driving at a reasonable and proper speed.

Plaintiffs also argue that the circumstantial evidence would allow the inference that Peterson was negligent in that he failed to keep a proper lookout. A motorist has a duty to keep a safe lookout to avoid colliding with a vehicle ahead and to take into account the prospect of having to stop suddenly. (Droese v. Fleming (1981), 93 Ill. App. 3d 781, 784, 417 N.E.2d 855; Apato v. Be Mac Transport Co. (1972), 7 Ill. App. 3d 1099, 1101, 288 N.E.2d 683.) Whether a driver has breached this duty is a question for the trier of fact. (See Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 721-22, 356 N.E.2d 445.) In a rear-end collision it is for the trier of fact to determine whether the rear driver was negligent or not. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 566, 449 N.E.2d 211; Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 227, 419 N.E.2d 1253; Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App. 3d 158, 162-63, 392 N.E.2d 183.) Whether a driver failed to keep a proper lookout may be established by circumstantial evidence. See Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 721-22, 356 N.E.2d 445.

The evidence here was sufficient for a jury to conclude that Peterson breached his duty to keep a proper lookout. The evidence showed that there were no skid marks. Failure to leave skid marks, along with other evidence, may support a reasonable inference that the driver failed to keep a proper lookout. (See, e.g., Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 721-22, 356 N.E.2d 445; Smith v. Bliss (1973), 12 Ill. App. 3d 514, 518, 299 N.E.2d 576.) In addition to the lack of skid marks, Dr. Frost’s opinion was that Peterson’s foot was firmly upon the accelerator at the point of impact. Baker’s opinion was that the car Peterson was driving struck the rear of a semitrailer. This evidence, when viewed most favorably to plaintiffs, allows the reasonable inference that Peterson drove into the rear of a semitrailer truck without attempting to use the brakes to avoid the collision. This evidence was sufficient for a jury to infer that Peterson failed to keep a proper lookout.

While defendant argues that other inferences may be drawn from this evidence, circumstantial evidence need not exclude all other inferences but must only be of such a character that the inference drawn is reasonable. (See Mort v. Walter (1983), 98 Ill. 2d 391, 396; see also Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 408-09, 444 N.E.2d 220.) The evidence, when viewed most favorably to plaintiffs, was sufficient to allow a reasonable inference that Peterson was not keeping a proper lookout.

Based on the foregoing analysis, we hold that the directed verdict was improper.

Because the issue of the photographic evidence raised by plaintiffs may come up on retrial of this case, we will briefly treat this issue here. The admission of photographs is within the discretion of the trial court and will not be reversed absent an abuse of discretion. (City of Chicago v. Scandia Books, Inc. (1981), 102 Ill. App. 3d 292, 299, 430 N.E.2d 14; Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 21, 339 N.E.2d 381.) “In order for a photograph to be admitted into evidence, it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to a particular issue and be verified by such witness on personal knowledge as a correct representation of these facts.” (City of Chicago v. Scandia Books, Inc. (1981), 102 Ill. App. 3d 292, 299, 430 N.E.2d 14; see Lawson v. Belt Ry. Co. (1975), 34 Ill. App. 3d 7, 21, 339 N.E.2d 381.) The trial court excluded plaintiffs’ exhibits Nos. 3 and 4 because it found that an inadequate foundation had been laid as to the lighting conditions depicted. Although Carl Olson testified that one of the photographs accurately showed the area of Flossmoor Road at 1-57 at night, the record discloses that neither he nor anyone else specifically testified that the photographs accurately represented the lighting conditions present that night. Thus, we cannot say that the trial court abused its discretion in this matter. However, we do note that a sufficient foundation was laid for these photographs as to their depiction of the configuration of the highway and other physical aspects of the scene. Thus, these photographs may be admissible for the limited purpose of depicting the physical aspects of the scene, with the jury being instructed not to consider the lighting conditions depicted. See, e.g., Warner v. City of Chicago (1978), 72 Ill. 2d 100, 105, 378 N.E.2d 502; Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1017, 388 N.E.2d 770; Green v. Keenan (1956), 10 Ill. App. 2d 53, 60-61, 134 N.E.2d 115.

For the foregoing reasons we reverse the judgment of the trial court entered on defendant’s motion for a directed verdict and remand for a new trial.

Reversed and remanded.

LINDBERG and HOPF, JJ., concur.