text:
    AMERICAN STATE BANK, Trustee under the Last Will and Testament of Ruth M. Kupfer, Deceased, Petitioner-Appellee, v. SYLVAN L. KUPFER, JR., et al., Respondents-Appellants—(Melissa Kupfer et al., Respondents).
    Fourth District
    No. 4—82—0404
    Opinion filed May 24, 1983.

      Michael A. Barford, of Bloomington, for appellants.
    James W. Yoder, of Yoder, Yoder, Zanoni, Flynn, Prall & Willard, of Bloomington, for appellee.
    William Paul, of Bloomington, guardian ad litem.

   JUSTICE MILLS

delivered the opinion of the court:

“Family Feud” goes to the theatre.

A brother and sister at an impasse over the sale of trust property — the Normal Theatre.

The trial court authorized the sale.

We affirm.

The trustee sought authority to sell the Normal Theatre — the sole asset of a trust — against the wishes of the present beneficiary, whose acquiescence is required by the terms of the trust before the realty can be sold. After a bench trial, the trial court entered an order authorizing the sale and respondents Sylvan L. Kupfer, Jr., and Mary Jane Kupfer appeal.

The evidence below was uncontroverted. In 1965, Ruth M. Kupfer, by her will, created two trusts, one of which was for the benefit of her son, Sylvan L. Kupfer, Jr., for a period of 21 years after her death. Upon termination of the trust, the assets were to be distributed one-fourth to Sylvan, one-fourth to Mary Jane Kupfer (Sylvan’s wife), and the remaining one-half to be divided equally among Sylvan’s children. The sole asset placed in the trust was Ruth’s one-half interest in the Normal Theatre (the Theatre). (Ruth had previously transferred the other one-half interest in the Theatre to her daughter, Joan E. Kupfer.) The trustee was not to sell the Theatre without the consent of Joan and Sylvan.

Ruth died in 1965. American State Bank was named as trustee in the will and has administered the property by leasing it to Kerasotes-Rialto Theatre Corporation (Kerasotes). Kerasotes notified the trustee that it no longer wishes to lease the Theatre. An installment sale contract was negotiated among Kerasotes, Joan, and the trustee. Under its terms Kerasotes would purchase all of the Theatre’s personal and real property for $150,000, to be paid over 10 years after a 10% down payment, with interest on the unpaid balance accruing at 12%. Sylvan refused to agree to the sale and the trustee petitioned the circuit court of McLean County for instructions, with Sylvan, Mary, Joan, Melissa Kupfer (Sylvan’s adult and sole child) and the unborn children of Sylvan, named as respondents. A guardian ad litem was appointed for the unborn children.

The petition for instructions alleged that no tenants other than Kerasotes could be obtained for the premises, and that absent a tenant, the trustee could not pay insurance premiums or real estate taxes on the premises, and as a result thereof, might lose the sole asset of the trust estate.

At trial, James Drake, attorney for Kerasotes, testified that his client had no interest in the Theatre as a tenant and was continuing the lease on a month-to-month basis until its purchase offer was formally accepted or rejected. Kerasotes invests in downtown theatres only when they are in good locations and can be expanded into twoplex or three-plex theatres. Kerasotes is only interested in making such an investment in property which it owns. Downtown theatres have been closing rapidly, partially because of their inability to share in the economies of a multi-screen operation.

Gary Riss, a real estate appraiser, testified that the replacement cost approach to the appraisal of the building would result in an appraised value of between $112,000 to $115,000 for the property. There would have to be extensive remodeling for the building to have a use for any other type of commercial purpose. The sloping floor would have to be changed to a level floor. There would have to be interior partitions, heating, ventilating, electrical and plumbing work done. His estimate of the cost range was $25,000 and up. He further testified that in his opinion the potential sale price would be less than his appraised value if the property were to be sold by the sheriff at a partition sale.

Joan testified that if the Theatre was not sold according to the proposed contract for purchase, she would bring a partition suit so that she could sell her one-half interest in the property. Her share of the rent is her primary income and would not allow her to make payments for taxes and insurance on the property if the lease with Kerasotes ran out. Neither could she pay her share of any remodeling costs.

She further testified as to her familiarity with the motion picture business, and that the trend has been to fewer and fewer independent theatres with chains buying out independent theatres or the theatres closing down. She did not know of any possible tenants for this property. The building was constructed in 1937 and has always been leased to a chain. Five different chains were contacted in an attempt to negotiate a lease. None of these contacts resulted in any interest. Joan said she was not willing to sell her interest to Sylvan on the same terms as she would be willing to sell to Kerasotes, because Kerasotes is a corporation with financial resources and stability and that she would only consider a chain because of the nature of the theatre business.

David Sullivan, a trust officer for the petitioner, testified that the will of Ruth Kupfer provided for two trusts, the Sylvan L. Kupfer, Jr., trust and the Melissa Kupfer trust. The only asset in Sylvan’s trust is the one-half interest in the Theatre.

The trusts are to terminate in March 1986, 21 years after the death of Ruth. Sylvan’s trust does not have funds on hand to remodel the property for any other use; there is no principal or corpus on hand for remodeling or renovation; and, absent a tenant, there will be no funds for paying taxes, insurance, and utilities. The trust termination date of March 1986 is an impediment to finding a tenant who would invest a large sum of money in the property because there would not be enough time to recapture the cost of their investment. Sullivan did not know of any way, absent the sale, to put this building to an economic use.

The income to the trust beneficiary as a result of the sale contract would be $7,800 annually. The income from the lease to the trust beneficiary was approximately $5,100 in 1980. Sullivan also described several unfruitful contacts made with potential tenants and admitted that no advertisements for the sale of the property had been made.

The only evidence offered by respondents was the testimony of Mary. She testified about an alternative proposal for the Theatre made by her and Sylvan. They object to the sale to Kerasotes and would like to operate the Theatre as a revival house showing old movies. A specific individual investor was available to provide funds for the initial operation of the Theatre in the amount of $10,000. The terms and conditions offered to Joan, as co-owner, would be the same as Kerasotes’ proposal, although the source of funds for the down payment was not identified. The operation of the Theatre by the appellants would be profitable and sufficient to provide for Joan’s requirements. Over the objection of appellants’ counsel, inquiry was permitted about a foreclosure of the mortgage upon Mary and Sylvan’s residence. In rebuttal Joan testified that a theatre chain had turned down an offer to operate a revival house and in her opinion one cannot be successfully operated without the economies of size of a chain.

After trial the court made the following findings of fact from the bench:

“I would note that the evidence is established that there has been a change in conditions since the drawing of the will ***. That no tenant as a lessee or tenant is presently willing and able to take over the premises. I would find that a sale to Kerasotes is feasible, and that the sale price is fair. There is á potential for no income for months to come, if Kerasotes were to withdraw as a tenant, as they have suggested by their legal representative they will. The other co-owner of the property or the owner of an undivided one-half interest is not interested in a sale on contract to family members, and has asserted to the Court under oath that she will seek partition, which is her right, and that partition would lessen the value of the asset and would waste both time and legal fees unnecessarily. The bank is the trustee before the Court, as Petitioner, and I believe it would be a breach of the fiduciary duty of a trustee to turn over a trust asset to persons who have no experience in running a movie house, nor any capital to invest in the running of such a business. If an offer were made to the Court by someone other than family members, to the bank, and the bank had to choose between the offer that the Respondents had made and the sale to Kerasotes, then the Respondents could properly object.”

Appellants’ main contention is that the facts here do not present the extreme conditions necessary for a trial court to order the sale of a trust asset contrary to the terms of the trust instrument. Appellants also argue that their proposal to operate the Theatre should have been accepted; that the particular sale to Kerasotes should not have been approved; and that the court erred in the admission of the evidence regarding the foreclosure.

Appellants contend that before a court may authorize the sale of a trust asset contrary to the terms of the trust, it must be shown by clear and convincing evidence that an emergency situation exists which requires a sale to prevent the inevitable loss of the asset or destruction of the trust, and that petitioner has failed to show such an emergency exists here. Furthermore, the mere fact that a sale may result in pecuniary gain for the beneficiaries is an insufficient basis for authorization for such a sale. Appellants cite a long line of Illinois cases in support of their position. (Curtiss v. Brown (1862), 29 Ill. 201; Gavin v. Curtin (1898), 171 Ill. 640, 49 N.E. 523; Johns v. Johns (1898), 172 Ill. 472, 50 N.E. 337; Dyer v. Paddock (1946), 395 Ill. 288, 70 N.E.2d 49; Stough v. Brach (1946), 395 Ill. 544, 70 N.E.2d 585.) Inasmuch as we conclude that the relevant common law has been substantially modified by statute, we need not decide whether such an “emergency” exists here.

In Curtiss, the Illinois Supreme Court first addressed the question of whether courts of chancery have the inherent power, in cases of necessity, to order a disposition of trust estates which is not in accordance with the provisions of the instrument creating the trust. The answer was in the affirmative with the caveat that the power should be exercised with great caution, and only when unforeseen exigencies arise which might place the estate in jeopardy or place the cestui que trust in “pinching want.” Furthermore, in departing from the explicit terms of the trust, the court should carry out what the creator of the trust would have desired if he had anticipated the existing circumstances.

Thereafter in Johns, the court explained that while cases subsequent to Curtiss authorized the conversion of trust real estate into personal property and the breaking in upon the corpus of the trust simply for “the best interest of the beneficiaries,” these were special circumstances because the trusts were created for the benefit of one under disability. Normally, however, a court is not authorized to break in upon a trust, and dispose of the subject matter against the will of the donor, on the ground that the immediate beneficiaries will receive greater benefits by reason of the proposed change in the trust than would accrue to them if the trust was administered according to the will of the donor. The beneficiary in Johns had desired to develop and sell a portion of real estate which composed the trust corpus in order to take advantage of the substantial rise in its value which had occurred because of encroaching urbanization. The proceeds were desired for use in raising the beneficiaries’ low standard of living. The court concluded that unless preservation of the subject matter of the trust, or some like necessity, demands judicial intervention, the donor’s intent should be followed, and that the evidence at hand did not present a sufficient urgency or necessity for judicial intervention.

In 1911 section 50 of the Chancery Act (Ill. Rev. Stat. 1911, ch. 22, par. 50) was amended giving chancery courts, inter alia, the jurisdiction to hear and determine bills to “authorize trustees to lease, mortgage and sell, improve, exchange and invest any portion or all of any trust estate *** or exercise any power *** necessary for the conservation, preservation, protection or betterment of said estate during any period of contingency ***,” thus giving a statutory basis for the authority which Curtiss declared was inherent.

In 1929 section 50 of the Chancery Act (Ill. Rev. Stat. 1929, ch. 22, par. 50) was again amended to read in pertinent part:

“Where lands or any estate therein are subject to contingent future interest *** whether a trust is involved or not, and it is made to appear that such lands or estate are liable to waste or depreciation in value, or that the sale thereof and the safe and proper investment of the proceeds will inure to the benefit and advantage of the persons entitled thereto *** the court shall have power pending the happening of the contingency and the vesting of such future interests *** to authorize and direct the sale of such property ***.” (Emphasis added.) (This provision has been subsequently amended and transferred to section 17.1 of the Trusts and Trustees Act (Ill. Rev. Stat. 1981, ch. 17, par. 1687.1), but the pertinent language remains the same.)

Appellants argue that despite the explicit language to the contrary, the above statutory provision does not change the standard of necessity enunciated in Johns. Appellants rely principally on Dyer, a post-1929 case, which cites Johns and several other older cases with approval and makes mention of section 50 of the Chancery Act without any comment regarding a change in the conditions necessary before a court will order a sale of trust assets contrary to the terms of a trust.

In Dyer the testator left residential property in trust for the use and/or support of his wife and daughters. Part of the property was in an area that was no longer residential and all of the buildings were old and out of repair so that they were not desirable for residential purposes. The court concluded from the evidence that the price offered for the property was above the normal cash market price and that if the bid was not accepted the trust would lose the opportunity to dispose of the property at an advantageous price. The court specifically did not reach the issue of whether or not the terms of the trust allowed the sale of the property, but apparently made its holding assuming arguendo that the sale was not authorized.

While the court reasserted the validity of Johns, it went on to say, “[t]he rule which supports an exercise of the power must be based on facts showing that conditions have arisen or exigencies developed which could not have been foreseen by the donor and that as a result of such unforeseen conditions the beneficiaries will suffer loss.” (Emphasis added.) (395 Ill. 288, 294-95, 70 N.E.2d 49, 52.) This is obviously a lesser standard than requiring that there be a threat of a total loss of a trust or a frustration of the purpose of the trust.

Why the significance of the 1929 amendment was not noted in Dyer is unknown. (See also Stough; Thorne v. Continental National Bank & Trust Co. (1958), 18 Ill. App. 2d 163, 151 N.E.2d 398.) However, that need not concern us inasmuch as the court has subsequently spoken to the meaning of the 1929 amendment. In Shamel v. Shamel (1954), 3 Ill. 2d 425, 121 N.E.2d 819, all that was in controversy was the sale of mineral rights. The court noted that there was no dispute that without a present sale the trust, and the ultimate beneficiaries, would suffer a total loss of the mineability of the coal within the trust property. Thus, since even prior to section 50 of the Chancery Act the courts of chancery could deviate from a trust instrument when a contingency arose in which the estate of the beneficiaries would be totally lost, the coal rights could be sold. The court went on to say:

“The amendment of 1929 to section 50 of the Chancery Act conferred a broader and wider power on chancery courts than had previously been granted by enlarging the scope of the act so as to permit a sale of lands when it is made to appear that such lands or estate are liable to waste or be depleted in value or that the sale thereof and the safe and proper investment of the proceeds will inure to the benefit and advantage of the persons entitled thereto. Mere benefit to the beneficiaries was not enough prior to such amendment, but the necessity for protection or preservation of the estate for prevention of a total loss to the estate had to be established. The enlarged scope of section 50 of the Chancery Act, as amended, gives power to the circuit court to authorize the deviation when the evidence shows that the lands are liable to waste and depreciation in value, or that a sale will benefit the persons entitled to the estate.” (Emphasis added.) 3 Ill. 2d 425, 435-36, 121 N.E.2d 819, 825.

Citing Thorne and the Historical Notes to section 50 of the Chancery Act (Ill. Ann. Stat., ch. 22, par. 50, Historical Note, at 191 (Smith-Hurd 1968)), appellants contend that the sole purpose of the statute was to confer jurisdiction upon the courts, and it did not establish standards as to when the court ought to exercise its power. It is true that the court in Thorne still spoke of the necessity of finding an “emergency.” However, it defined emergency in such broad terms, finding that a dispute between the beneficiaries and a pending settlement agreement between them which required a sale contrary to the terms of the trust was an “emergency,” that in reality the strict standard which appellants contend for was not followed. Furthermore, Thorne did not discuss section 50 of the Chancery Act or its exegesis as found in Shamel, and of course it is Shamel which controls our disposition. The explicit language of Shamel indicates that the 1929 amendment did not merely expand court jurisdiction, but affected the evidence necessary to justify the exercise of judicial power in the relevant matters.

Apparently no Illinois decision in a matter like we have here has ever rested solely upon the statutory powers now found in section 17.1 of the Trusts and Trustees Act (Ill. Rev. Stat. 1981, ch. 17, par. 1687.1). (See Thigpen, Does Inflation Since 1941 Provide Basis For Deviation From Investment Provisions Of Pre-1941 Trusts?, 50 Ill. B. J. 1100, 1102 (1962).) However, it has previously been noted that the alternative holding found in Shamel clearly interprets the 1929 amendment as broadly expanding the powers of the court. (See Schuyler, Future Interests in Illinois: Current Maturities and Some Futures, 50 Nw. U. L. Rev. 457, 524 (1955); Werden, Unfreezing Land Titles, 1956 U. Ill. L. F. 76, 82.) We agree. We conclude that section 17.1 of the Act empowers the court to order the sale of a trust asset, contrary to the terms of the trust, if it is liable to waste or depreciation in value or the sale thereof will inure to the benefit of the persons entitled thereto.

We do not construe this power so broadly as to annul all restraints on alienation found in trust instruments, or to allow current beneficiaries to profit at the expense of future beneficiaries (or vice versa). Rather, we think Dyer, Shamel, and the statute indicate that judicial intervention is appropriate only when there has been a change in circumstances affecting the trust which was unforeseen by the donor, and any resulting order must be tailored to implement the intention of the donor (see Stephens v. Collison (1916), 274 Ill. 389, 395-96, 113 N.E. 691, 694; Thorne).

While appellants have vigorously maintained that the emergency conditions required by common law do not exist here; they have apparently conceded that the evidence does show that a failure to proceed with the sale to Kerasotes would result in the loss of an opportunity to sell the Theatre at an advantageous price and would subject the trust to the possibility, if not probability, of loss because of the absence of a prospective tenant financially secure enough to satisfy the co-owner so that she does not proceed to force a partition sale.

Indeed the record completely substantiates the trial court’s conclusion that there has been a change in conditions in the theatre industry since the establishment of the trust and that absent a sale to someone other than Sylvan, Joan will force a sale through a partition proceeding which would lessen the value of the trust assets and cause the incursion of further legal fees. Appellants have complained of petitioner’s failure to advertise the sale of the Theatre. The trial court found that the terms of the sale, at a price substantially above the appraised value, was reasonable and we agree. In any event, appellants have made no argument that the terms of sale are unfair and the fact that better terms hypothetically might be available does not weigh against the conclusion that the trust assets should be sold because of the changed conditions.

Appellants next argue that in determining how to dispose of the Theatre, the court ignored the intent of the trust donor when it failed to accept their proposal to purchase and run the Theatre. As we stated earlier, when disposing of a trust asset contrary to the terms of the trust, the court should attempt to implement the donor’s purpose in establishing the trust. We agree with appellants that there is no inference in the will that the donor wished Sylvan to be precluded from owing and/or operating the Theatre, and that clearly the trust was established for the benefit of Sylvan and his family. However, Ruth chose to benefit Sylvan and his family by placing the Theatre in trust and the only management control of the Theatre placed outside of the trustee is a requirement that Sylvan and Joan approve any sale and that Joan approve all leases. There is therefore similarly no inference that the donor desired that Sylvan manage the Theatre.

While, all things being equal, a sale to some of the beneficiaries rather than to a third party would be preferable, the trustee must manage the trust for the benefit of all potential beneficiaries, including appellants. Apparently appellants did put a significant effort into developing a plan for operating the Theatre. However, the financial risk involved in operating a “revival” theatre, by individuals with no experience in the theatre industry, are significant. Also, appellants’ total dependence on one private source of capital of unknown reliability, and the failure to explain where funds for a down payment would be procured, compound the riskiness of any proposed sale to them. We therefore agree with the trial court’s conclusion that a sale by petitioner to appellants would have been a breach of petitioner’s fiduciary duty. Furthermore, even if it could be concluded that appellants’ offer was as sound as that made by Kerasotes, the fact that Joan would refuse to acquiesce in such a sale and instead would seek partition of the property precluded appellants’ offer from being considered a viable alternative.

Appellants’ last objection is that the court erred in admitting testimony regarding the mortgage foreclosure upon Sylvan and Mary’s residence. Appellants contend that the foreclosure had no bearing on their ability to manage a theatre and was thus irrelevant. We believe that an inability to manage one’s own personal finances has a bearing on one’s ability to manage a business and was also relevant to show appellants’ lack of financial resources to commit to a theatre operation. The testimony was properly admitted.

The judgment of the trial court is affirmed.

Affirmed.

TRAPP and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT JUSTICE BARRY,

license: Public Domain

text:
    MARY WEGNER MEYERS, Plaintiff-Appellee, v. NANCI K. LOUTHAN, Defendant-Appellant.
    Third District
    No. 82—484
    Opinion filed May 17, 1983.

      BARRY, J., dissenting.
    Robert Y. Dewey, Jr., and Judith A. Schieber, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellant.
    James E. Bowles, of Goldfine & Bowles, P.C., of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Nanci K. Louthan, having been granted leave to appeal, appeals from an order of the circuit court of Peoria County which granted Mary Wegner Meyers a new trial on all issues after a jury had awarded Meyers a judgment in the amount of $136 as damages arising from a collision at an intersection.

Meyers, hereinafter referred to as the plaintiff, testified that on January 3, 1978, in the early afternoon, she was driving her automobile in the city of Peoria. Her destination was the Bemis Bag Company where she was employed and she was due to report for work at 3:30 p.m. Plaintiff was driving a 1977 Granada automobile and road conditions were “icy and snowy.” Plaintiff, arriving at an intersection, stopped and while so stopped was struck by a vehicle driven by Lou-than, the defendant, who testified that she had been traveling at a speed of five to 10 miles per hour. The impact was unquestionably slight. The plaintiff’s vehicle either did not move or at the most moved approximately one foot as the result of the impact. The only damage resulting from the collision was a golf-ball-size dent on the rear bumper of plaintiff’s vehicle.

At the time of the accident neither the plaintiff or her passenger or the defendant and her passenger, a 79-year-old lady, complained of any injuries. The police arrived at the scene of the accident and no one complained to them as to any injuries.

After the police investigation the plaintiff proceeded to her place of employment. After working two hours the plaintiff drove herself to the St. Francis Hospital where she complained of pain and immobility as to her neck. After being X-rayed and being given muscle relaxers and pain pills, the plaintiff was released with the advice to see her family physician if pain persisted. Several days later on January 5, 1978, she engaged the services of a chiropractor, Denzel D. Jines. The chiropractic treatment received by the plaintiff was extensive. Approximately 21k years later plaintiff received treatment from Dr. Lawrence Holden, a neurosurgeon, who had her admitted to the St. Francis Hospital on September 1, 1980. The plaintiff, as the result of medical and hospital expenses and loss of wages, alleged damages in the approximate sum of $10,500. A portion of this sum was a $136 charge for the emergency treatment which plaintiff received at St. Francis Hospital.

During the trial of this case expert testimony on behalf of the defendant was presented. Dr. Loren Whittaker, a board-certified general surgeon, had examined the plaintiff and he testified that his examination revealed no abnormalities except for a congenital problem in her lower back. He found no muscle spasm or restriction in range of motion in either her neck or back and found no reason why she could not work except for possible complications attributable to her congenital problems which pre-existed the accident. Dr. Whittaker compared X rays taken within a few days after the accident with those taken in 1981 and testified that the comparison did not disclose any objective evidence of disability on the part of the plaintiff. In answer to a hypothetical question Dr. Whittaker testified that any muscle strain which plaintiff might have experienced as the result of the accident would be of a minor degree and would disappear within a short period of time.

Dr. Joseph Johnigk, a chiropractor who had treated the plaintiff prior to the accident, testified that plaintiff had pre-existing problems in each of the areas of her body which she claimed were injured in the accident and that these problems had not been cured when she left his care.

Chiropractor Dr. Jines on cross-examination testified that several physical confrontations in which plaintiff had been involved prior to the accident could have caused injury to her neck of a permanent nature.

The jury returned a verdict in the sum of $136, which represented the charge for plaintiff’s initial emergency room treatment. Pursuant to motion of the plaintiff, the trial court granted a new trial as to all issues.

The sole issue presented in this appeal is whether the trial court abused its discretion in granting plaintiff a new trial.

The tenor of the plaintiff’s brief is to the effect that there was uncontradicted evidence that special damages were incurred by her in the sum of $10,500 and that damages in this amount indisputably proved that the jury’s verdict was palpably inadequate. The mere fact that the plaintiff has expended or is obligated to expend a sizable amount of money and has suffered loss of income subsequent to the intersection accident does not per se establish the amount of damages which a jury should award to her. The measure of damages for physical injury may be broadly stated to be such sum as will compensate the injured person for all losses directly sustained by reason of the injury. (15 Ill. L. & Prac. sec. 141, at 447 (1968).) In the instant case the evidence established that the plaintiff had a congenital problem with her back. She had received treatment for such condition prior to the intersection accident. Medical evidence was strong to the effect that her pre-existing problems in the body areas that she claimed were injured by the accident were no more serious after the accident than they were prior to the accident. Evidence established that physical confrontation in which plaintiff had been involved prior to the accident could have caused permanent injury to her neck.

In the light of this evidence, together with the low-speed impact of the vehicles which caused minimal damages to the vehicles, plus a number of inconsistent statements made by the plaintiff, it is obvious that the jury chose not to believe that plaintiff’s physical problems resulted from the intersection accident.

The factual situation in the instant case closely resembles the facts in Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266. Khatib involved the sideswiping of two vehicles on Lake Shore Drive in Chicago. The estimated speed of the vehicles was approximately eight miles per hour. The plaintiff complained of no injuries and received no treatment at the time of the accident, but later complained of lower back pain. The plaintiff presented evidence of medical and hospital bills which totalled more than $3,300 and of projected future wage loss in the sum of $254,578. The evidence adduced at trial indicated that there was some question as to whether plaintiff was injured as extensively as he claimed and whether all of the medical expenses were necessary. The jury returned a verdict in the sum of $3,000, and plaintiff appealed from a denial of his motion for new trial. The reviewing court granted a new trial because of errors committed, but refused to accept plaintiff’s contention that a verdict for less than ont-of-poeket expenses is palpably inadequate.

The granting of a new trial is within the discretion of the trial court but such action is reviewable for the purpose of determining whether there has been an abuse of discretion. The granting of a new trial was reversed in the case of Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267. We will not set forth in detail the factual situation in Nicholl but will make the observation that it is strikingly similar to that presented in the instant case. As in the case of Nicholl we find that the trial court in granting a new trial abused its discretion, and thereby reverse the order of the circuit court of Peoria County granting a new trial, and remand this case with directions that judgment be entered on the jury’s verdict.

Reversed and remanded.

STOUDER, P.J., concurs.

JUSTICE BARRY,

dissenting:

In my opinion, the trial court did not abuse its discretion in granting a new trial. Because the amount awarded by the jury is precisely the amount of plaintiff’s out-of-pocket expenses incurred solely for emergency hospital treatment, I am convinced that the jury’s verdict represents a compromise upon the issue of defendant’s liability and plaintiff’s damages. Such a compromise verdict is proper grounds for awarding a new trial. Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623.

Furthermore, considering the jury’s finding of liability on the part of the defendant, the $136 award is patently inadequate and bears no reasonable relationship to plaintiff’s compensable losses. On the day of accident, plaintiff proceeded to her place of employment; but after two hours, she said she began to experience pain in her back and neck. In any event she left work and went to the emergency room of the hospital, missing the remaining six hours of the shift on that day. An additional 19 days of work were missed thereafter because of her injuries. The jury found that plaintiff’s emergency hospital treatment was causally related to her injury. Her loss of work then for the time spent getting such treatment, at the very least, was causally related and compensable as well.

Having read the record of the trial in this case, I cannot escape the conclusion that the jury either misunderstood the instruction on the elements of compensable damages, or awarded $136 as a compromise verdict on liability and damages. The granting of a new trial is an appropriate remedy in this case. See Duncan v. Peoria Yellow Checker Cab Corp. (1977), 45 Ill. App. 3d 653, 359 N.E.2d 1242.

I would affirm the judgment of the trial court awarding a new trial.


author: JUSTICE SCOTT

text:
    PORT CITY LEASING, Plaintiff-Appellee, v. ARMAND LOFFREDO et al., Defendants and Counterplaintiffs-Appellants—(Armand Loffredo, Counterplaintiff-Appellant).
    Third District
    No. 82—572
    Opinion filed May 17, 1983.

      Daniel Lampitt, of Morton, for appellants.
    Steven J. Rosenberg, of Chicago, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

Defendants-counterplaintiffs, Armand Loffredo and Catheryne Loffredo, appeal from orders of the circuit court of Tazewell County granting plaintiff’s action for replevin on certain printing equipment and awarding summary judgment for $6,534.30 plus interest and costs for delinquent payments pursuant to a franchise agreement. The original franchise agreement was between Quickprint, Inc., an Ohio corporation, and the defendants; however, a subsequent agreement was made between the defendants and plaintiff-counterdefendant, Port City Leasing, an affiliate of Quickprint with the same undisclosed owners for the actual supply of the printing equipment. The defendants’ attempt for rescission of the equipment lease agreement on the grounds of violations of the Franchise Disclosure Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 701 et seq.) failed despite evidence of a certificate of noncompliance issued by the office of the Attorney General of Illinois.

Prior to the sale of the franchise for $15,000, Quickprint presented Loffredo with a disclosure statement which failed to disclose the affiliation between Quickprint, Inc., and Port City Leasing and failed to disclose that Port City Leasing would derive income as an affiliate when leases were made through it. These facts should have been disclosed in the disclosure statement and constituted prima facie evidence of an omission to state material facts as required by the Illinois Franchise Disclosure Act.

In the event that a sale of a franchise is made in violation of the Act, the statute allows the franchisee to rescind the transaction and recover all amounts paid, together with interest less profits made plus attorney fees.

Port City Leasing sought to attack the allegation of a statutory violation by alleging that the Loffredos (1) knew of the affiliation at the time of entering into the agreements, and (2) that the failure to make the disclosures did not result in any harm to them and therefore rescission should not be allowed.

The Loffredos contend that these allegations amount to an attempt by Port City Leasing to create their own private exemptions which are neither recognized nor sanctioned by the provisions of the Franchise Disclosure Act. Specifically, the Loffredos contend that there is nothing in the Act which suggests that the failure to make a required disclosure must be accompanied by resulting harm to the franchisee before a violation is shown and a rescission allowed.

The Franchise Disclosure Act provides in part:

“(1) The General Assembly finds and declares that the widespread sale of franchises is a relatively new business phenomenon which has created numerous problems in Illinois. Illinois residents have suffered substantial losses where the franchisor or his representative has not provided full and complete information regarding the franchisor-franchisee relationship, the details of the contract between the franchisor and franchisee, the prior business experience of the franchisor and other factors relevant to the franchise offered for sale.
(2) It is the intent of this Act: (a) to provide each prospective franchisee with the information necessary to make an intelligent decision regarding franchises being offered for sale; and (b) to protect the franchisee and the franchisor by providing a better understanding of the business and the legal relationship between the franchisor and the franchisee.” Ill. Rev. Stat. 1981, ch. 121V2, par. 702.

The Act further provides that:

“Every sale of a franchise made in violation of this Act shall be voidable at the election of the franchisee or subfranchisor as provided in subsection (b) of this Section. The franchisor, sub-franchisor, franchise broker, salesperson or other person on behalf of whom such sale was made or who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such franchisee or subfranchisor for (1) the full amount paid, together with interest at the legal rate from the date of payment less any income received on the franchise and (2) reasonable attorney’s fees.” Ill. Rev. Stat. 1981, ch. 121V2, par. 721(2)(a).

Finally the Act provides that:

“In any civil or criminal action brought under this Act, a certificate under the seal of State, signed by the Administrator, stating non-compliance with the provisions of this Act, shall constitute prima facie evidence of such non-compliance with the provisions of this Act and shall be admissible in any such action. ***” Ill. Rev. Stat. 1981, ch. I2IV2, par. 724.

The evidence in the record discloses that Port City Leasing operated out of post office boxes in the Toledo, Ohio, area. The purported manager of Port City Leasing, C. S. Hartman, was not a living person, but a pseudonym used by various secretarial personnel. Port City Leasing had no employees, but subcontracted all services. Both Quick-print, Inc., and Port City Leasing were owned and operated by A. C. Hazlewood, Jr., and John McKisson.

Despite the foregoing, Port City Leasing contends that the Loffredos are merely using this information in an attempt to escape their liability for past due installments under the franchise lease agreements. It is true that the Loffredos were in admitted default on their payments. It is also true that both Mr. and Mrs. Loffredo could not offer any specific change in their original course of action had they known of the affiliation between Quickprint, Inc., and Port City Leasing.

In conjunction with appellee’s motion for summary judgment, Port City Leasing sought to have the Loffredo counterclaim dismissed on the grounds that the applicable statute of limitations had passed thereby barring recovery.

Section 22 of the Franchise Disclosure Act provides:

“No action shall be maintained to enforce any liability created under this Act unless brought before the expiration of 3 years after the act or transaction constituting the violation, the expiration of one year after the discovery of the fact constituting the violation or 90 days after delivery to the franchisee or subfranchisor of a written notice disclosing the violation. No cause of action barred under existing law on the effective date of this Act shall be revived by this Act. Every cause of action under this Act survives the death of any person who might have been a plaintiff or defendant.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 1211/2, par. 722.

Appellee argues that Loffredo first raised the nondisclosure issue in his counterclaim nearly three years after he became aware of the relationship between Quickprint and Port City Leasing. As such, it is argued his claim was nearly two years late and therefore barred by the explicit terms of the statute.

With respect to whether Loffredo brought his claims within one year of learning of the affiliation of Quickprint and Port City Leasing, we have previously held that knowledge of Franchise Disclosure Act violations presents mixed questions of law and fact on which laymen are entitled to acquire their first knowledge from an attorney. (Brenkman v. Belmont Marketing, Inc. (1980), 87 Ill. App. 3d 1060, 410 N.E.2d 500.) We believe, therefore, that appellee’s challenge on the basis of the applicable statute of limitations is not well taken.

Finally, we conclude that in view of the many triable questions of fact which remain bearing upon the statutory right to rescind the agreement, it is impossible to affirm the circuit court’s decision to grant summary judgment in the case at bar.

Reasonable minds could certainly differ as to when the Loffredos had knowledge of the affiliation of Quickprint and Port City Leasing, and whether it would have made any difference to the Loffredos anyway. The certificate of noncompliance only makes out a prima facie case for the Loffredos; evidence of compliance or whether there were material omissions of fact remained to be determined. We find no error in the granting of plaintiff’s appropriate request for replevin of its property. (Brenkman v. Belmont Marketing, Inc. (1980), 87 Ill. App. 3d 1060, 1065, 410 N.E.2d 500, 504.) However, the judgment entered by the circuit court of Tazewell County denying the counterplaintiff Loffredos’ suit for rescission and the entering of judgment for counterdefendants in the sum of $6,543.30 plus interest and costs is reversed and this case is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE ALLOY

text:
    WANDA NUNLEY, Plaintiff-Appellant, v. FRANK E. MARES, d/b/a Mares Service, et al., Defendants-Appellees.
    Third District
    No. 82-614
    Opinion filed May 4, 1983.
    Rehearing denied June 7, 1983.

      Louis E. Olivero, of Peru, for appellant.
    T. Donald Henson and Robert M. Hansen, both of Herbolsheimer, Lannon, Henson, Duncan and Reagan, P.C., of La Salle, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff Wanda Nunley appeals from the judgment of the circuit court entered against her after a jury verdict in favor of defendants Frank E. Mares, d/b/a Mares Service, and Ronald Veen. Plaintiffs action against the defendants was based upon alleged negligence and wilful and wanton misconduct by them in connection with a towing operation. The jury returned a general verdict for the defendants, and answered, in the negative, the following special interrogatory: “Was the negligence of the defendants a proximate cause of the injury to the plaintiff?” On appeal, plaintiff raises the following issues: (1) whether the verdict and answer to the special interrogatory are contrary to the manifest weight of the evidence; (2) whether the court erred in refusing two of plaintiff’s instructions; (3) whether the court erred in excluding evidence that the defendant had forfeited his bond on a traffic citation issued as a result of the accident; (4) whether defense counsel engaged in improper and prejudicial closing argument; (5) whether the court improperly restricted the cross-examination of a defense expert witness; (6) whether reversal is required because the defense failed to comply with Rule 215(c); and (7) whether the court abused its discretion in ruling that the jury could begin deliberations at a late hour.

The record discloses that on January 18, 1977, around 1:30 p.m., plaintiff was driving northbound on Dimmick Road, a two-lane blacktop highway in La Salle County. It was a sunny day and plaintiff was approximately one mile north of Route 351, on Dimmick Road, driving her 1963 Chevrolet. At the same time, some distance ahead of plaintiff Nunley on the road, was the defendant Ronald Veen, who was engaged in a towing operation under the employ of Mares Service. A disabled semi-truck was located on the right shoulder (east side) of Dimmick Road. On the left side (west side) of the road was the Mares’ tow truck with Veen in charge. Evidence indicated that the cab of the semi had been pulled up to the east edge of the highway, and at the time of the collision, was several feet onto the roadway. The Mares wrecker was positioned perpendicular to the highway, with the rear end of the wrecker onto and over the west edge of the pavement, facing the disabled semi on the other side of the road. The wrecker, according to testimony, extended out about 3V2 feet on the paved part of the west half of the highway.

Veen had run two steel cables from the back of the wrecker to the front of the disabled semi, for the purpose of pulling the semi onto the highway. Veen testified that he had all his lights on the wrecker in operation, including revolving mars lights and all body lights. Before he hooked the cables to the semi, Veen had stopped all approaching traffic by putting his hands up. At that time, the cables were lying on the pavement surface. Two or three southbound vehicles were stopped north of the towing operation, and one northbound vehicle was stopped south of the operation. The northbound vehicle, hereinafter referred to as the Jupe auto, was driven by a woman and had stopped between 75 and 140 feet south of the cables. There was some variance in the trial evidence as to that distance. Veen testified that the northbound vehicle had not only stopped on the highway, but that the driver had activated its four-way warning flashers.

According to Veen, plaintiff Nunley pulled up behind the Jupe auto, already stopped in the northbound lane, and stopped her auto as well. Veen, at this time, was standing at the rear of the wrecker. Veen’s testimony was that Nunley stopped about a car length behind the Jupe auto, or about 150 feet from the cables in the road. When Veen saw that all traffic was stopped, he began to tighten the cables, with the winch mechanism on the wrecker. The cables were tightened, an operation which took about 30 seconds. Then, according to Veen, he heard a car accelerate, and, turning to the south, he observed Nunley’s auto coming around the stopped Jupe vehicle in front of her. He estimated that the Nunley auto was at 15 to 20 mph and accelerating. He ran from beside the wrecker into the center of the road, waving his arms at Nunley and yelling “stop,” in an attempt to prevent further progress by Nunley. His efforts were unavailing, and Nunley drove her auto into the taut steel cables stretched over the highway between the wrecker and the disabled semi. Veen stated that after the accident, Nunley admitted that she saw him as he ran to stop her, but she stated that she had not slowed down because he had “scared” her. The evidence also indicated that Veen had not posted any warning flags or fusees on the highway, nor had a flag been attached to the cable. Defendant Mares testified that the flags are not used on the cable, because they may get caught in the pulleys when the winch is in operation.

Plaintiff Nunley’s version of the events surrounding the accident varied in considerable detail from that testified to by defendant Veen. Nunley stated that after passing a viaduct, she slowed to pass a car in the northbound lane, which she thought was stalled on the road. She saw no flashers on the auto. She stated that as she passed the vehicle, she noticed the wrecker on the left (or west) side of the highway and the semi on the east shoulder of the road. She stated that she saw no other cars stopped, nor did she notice anything on the highway. She slowed to observe but did not stop her auto. She testified that she saw no person on or off the highway and nothing to indicate to her not to proceed past the towing operation. Nunley did admit to seeing the yellow flashing lights of the wrecker prior to the accident, and admitted that she “stepped on it” just before striking the cable. Another witness, Loraine Jupe, was the driver of the northbound auto which had stopped ahead of Nunley in the northbound lane. Mrs. Jupe testified that the wrecker operator had flagged her down, and that she had stopped and put her flashers on. She could observe the cable in the highway. Mrs. Jupe noticed, as plaintiff’s car came around hers, that the wrecker operator tried to flag down Nunley, standing in front of the cable. She also testified to overhearing Nunley admit that the accident was her fault, and that she had not noticed the cable, as she was watching the truck.

The defense evidence indicated that Veen had been instructed by his employer, Frank Mares, to put a flag on a cable crossing the road, in order to stop traffic. Veen had also been instructed generally on the placement of warning signals and on informing the police if the wrecker’s operation would necessitate slowing or stopping the flow of traffic.

As a result of the accident, plaintiff Nunley was treated for neck and back injuries, as well as a lacerated lip. Her medical evidence indicated disc syndrome, caused by a herniated disc, which could be permanent and require future medical treatment as well. The medical diagnosis and the severity of any injury was disputed by the defendants.

The jury returned a verdict for the defendants, answering in the negative a special interrogatory which asked: “Was the defendant’s negligence a proximate cause of the plaintiff’s injuries?”

Plaintiff Nunley’s first contention on appeal is that the verdict of the jury and its answer to the special interrogatory were contrary to the manifest weight of the evidence. We disagree, for when the disputed questions of fact are resolved in defendants’ favor, as they must be on the verdict (Lynch v. Board of Education (1979), 72 Ill. App. 3d 317, 322, 390 N.E.2d 526), the evidence in the record clearly supports a conclusion and finding that it was plaintiff’s negligence, in disregarding the available warnings to stop, which was the proximate cause of her injuries. The flashers and other warning lights on the wrecker were all activated, and plaintiff admitted seeing them. Further, the wrecker was positioned in such a manner as to indicate an ongoing operation on the highway. Plaintiff Nunley observed the disabled semi off the road on the other side of the road from the wrecker. Vehicles in the southbound lane had stopped on the other side of the wrecker, and the Jupe auto was stopped, with flashers activated, in Nunley’s rorthbound lane of traffic, some distance from the towing operation. All of the activity on the highway, including flashers on both wrecker and Jupe auto, indicated that caution was necessary. Further evidence indicates that Nunley initially stopped her auto behind the Jupe auto, but then unexpectedly swerved around it, accelerating the entire time and driving into the taut cable, after disregarding defendant Veen’s frantic attempts, from the middle of the road, to stop her before hitting the cable. The record indicates that numerous warnings not to proceed were present and that plaintiff Nunley ignored them by proceeding in the manner she did. The acts of plaintiff Nunley in disregarding the available warnings to stop and proceeding without caution are unreasonable, and the jury could properly have concluded that it was plaintiff’s actions therein, and not any act or omission of the defendants, which was the proximate cause of her injuries. The facts support fully the verdict and the answer to the special interrogatory. Our decision in Walsh v. Central Illinois Public Service Co. (1918), 212 Ill. App. 668 (abstract), an unpublished opinion, is inapposite, involving as it did a permanent guy wire placed over a well-worn track along a highway, without any advance warning of any kind as to its presence. The general verdict is supported by the evidence which indicates plaintiff’s negligence as the cause of her injuries. Additionally, we find no ambiguity in the special interrogatory, as is suggested by plaintiff’s counsel. The clear focus of the interrogatory was the question of proximate cause, not the questions of negligence and injury. The interrogatory assumed defendant’s negligence and injury to plaintiff, and focused upon the causation issue. As determined, the evidence was sufficient for the jury to have found that it was not any negligence of the defendants, but negligence by the plaintiff, that was the proximate cause of the injuries. Plaintiff correctly notes that if the evidence indicates that plaintiff’s negligence was reasonably foreseeable, it will not relieve the defendant of liability. (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 15, 413 N.E.2d 1242.) In the instant case, however, the conduct of the plaintiff in proceeding forward without caution, in the face of numerous warnings to be cautious, and after stopping initially in the face of such warnings, was not reasonably foreseeable. Bentley is not at all controlling, for there was no clear advance warning, as in this case, nor was the plaintiff guilty of disregarding clear warnings. We conclude, on the basis of the evidence viewed favorably to defendants, that the verdict and special interrogatory were not contrary to the manifest weight of the evidence. The record supports a jury conclusion that the injuries suffered by the plaintiff were proximately caused by her own negligence, and not by any negligence on the part of the defendants.

We next turn to the issues raised concerning two jury instructions tendered by plaintiff, but refused by the trial court. Plaintiff tendered its instruction No. 26, which stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
‘No person shall operate any motor vehicle at the second division upon any highway outside an urban district at any time unless there is carried in such vehicle the following equipment, except as provided in paragraph (b) of the Section:
1. At least 3 liquid-burning flares, or 3 red electric lanterns or 3 portable red emergency reflectors, each of which is capable of being seen and distinguished at a distance of not less than 500 feet when lighted lamps are required, provided that emergency reflectors meeting the requirements of Federal Motor Vehicle Safety Standard No. 125 shall be deemed acceptable as regards visibility and color; and
2. At least 3 red-burning 15-minute fusees unless red electric lanterns or portable red emergency reflectors are carried; and
3. At least 2 red-cloth flags, not less than 12 inches square, with standards to support flags or in lieu thereof, 2 portable emergency reflectors meeting the requirements of Federal Motor Vehicle Safety Standard No. 125.
* * *
(f) Whenever any vehicle of a type referred to in this Section is disabled upon any roadway or shoulder thereof outside an urban district or on any controlled access highway within an urban district at any time when the display of fusees, flare, red electric lanterns or portable red emergency reflectors are not required, the driver of the vehicle shall display 2 red-cloth flags or 2 portable emergency reflectors meeting the requirements of Federal Motor Vehicle Safety Standard No. 125 upon the roadway or shoulder in the lane of traffic occupied by the disabled vehicle in the following order:
One at a distance of approximately 100 feet in advance of the vehicle; and
One at a distance of approximately 100 feet to the rear of the vehicle.’
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was negligent before and at the time of the occurrence.”

This instruction is predicated upon section 12 — 702 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1981, ch. S^lz, par. 12 — 702.) We find that the trial court correctly refused this instruction, as there was no evidence presented of a violation of the statutory provision. There was no evidence to indicate that the defendants failed to have the required safety equipment in their wrecker. The evidence, which was uncontradicted, indicated that they did have all the requisite warning equipment. Thus, the first portion of the statute did not apply to the instant case, as the evidence showed no violation of its requirements. The same is true with respect to subsection (f) of the statute, requiring the drivers of disabled vehicles to post warnings around such vehicle when it is disabled upon a roadway. (Ill. Rev. Stat. 1981, ch. 95^2, par. 12 — 702(f).) This section had application to the driver or operator of the disabled semi, but not the defendants, as operators of the tow truck, which was not a disabled vehicle. Defendant Veen was not the driver or operator of a disabled vehicle, but rather the operator of the wrecker aiding the disabled vehicle. As the plaintiff notes, driver is defined in the Illinois Vehicle Code as every person “who drives or has actual physical control of a vehicle” (Ill. Rev. Stat. 1981, ch. 951/2, par. 1 — 116), but we find the intent of sections 12 — 702 and 1 — 116, to place the obligation to warn upon the person in control of the vehicle, in its functional operation of a vehicle. So far as the record shows, Veen had not driven the vehicle, nor been in operational control of the disabled semi. Veen exercised limited custody, and limited external, nonoperational control over the vehicle, in his position as wrecker-operator. He was not a driver within the meaning of section 12 — 702. We find that the intent of the statutory provision was to impose upon the driver of a disabled vehicle the duty to give the stated warnings, but that it was not the intent to impose such duties upon an operator of a wrecker who is involved in the towing operation of a disabled vehicle. This conclusion does not establish that the operator in charge of a towing operation has no duty to warn, for he clearly does (Barango v. E. L. Hedstrom Coal Co. (1956), 12 Ill. App. 2d 118, 138 N.E.2d 829). In the instant case, the issues concerning the defendants’ failure to warn were put before the jury through other instructions, and were vigorously argued by plaintiff’s counsel. We find only that the instruction based upon section 12 — 702 was properly refused, as neither portion of the instruction was shown by the evidence to have been violated by the defendants in the instant case.

Error is also asserted in the court’s refusal to give plaintiff’s instruction No. 23, which stated:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
‘If any person injures or obstructs a public highway by *** placing or leaving any other obstruction thereon *** he shall be guilty of a petty offense ***.’
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the party was negligent before and at the time of the occurrence.”

This instruction is based upon a portion of section 9 — 117 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 9 — 117). The court found that the words “guilty of a petty offense” were prejudicial, as indicating criminal conduct, and could thereby mislead the jury into thinking that the defendant was guilty of violating the law by placing a cable across the road during a towing operation.

We find the court properly refused this instruction. It clearly would have injected the prejudice attendant with criminal sanctions into the case. Furthermore, we find that the statutory provision upon which the instruction was based had no application to the facts in the instant case. The statute addresses itself specifically to highway obstructions in the nature of trees, fences, ditches, plowing and flooding. While the broad language of the statute (“any other obstruction”) would arguably include any manner of obstruction, including perhaps even warning flags or lights, a reading of the provision, in its entirety, evidences no intent to punish wrecker operators, who in the course of their operations must necessarily place some equipment on the highway. (See Bennett v. Illinois Power & Light Corp. (1934), 355 Ill. 564, 573, 189 N.E. 899; cf. Jones v. Traver (1934), 275 Ill. App. 181, 190-91; Tolman & Co. v. City of Chicago (1909), 240 Ill. 268.) It would be unreasonable to find that the legislature intended to make criminal the otherwise lawful temporary obstructions of highways by wrecker operators, where the obstruction was necessary and pursuant to an attempt to remove a disabled vehicle, itself a dangerous condition. We find the court properly determined that this statute did not apply, and there was no evidence indicating a violation of it by the defendants. Even were we to adopt plaintiffs strained construction, we would find the court’s refusal proper, given the prejudicial impact of the “petty offense” language and the presence of other instructions which adequately instructed the jury as to the defendants’ duties in the instant case.

Plaintiff’s next issue raised on appeal is whether the court erred in excluding evidence that the defendant Veen had received a traffic ticket for improper parking on a roadway, for which he posted $25 bond. The bond was forfeited and a guilty finding entered by the circuit court. The plaintiff asserts error by the court in refusing to admit the evidence and urges this court to adopt a position permitting evidence of the conviction of a traffic offense, after forfeiture of bond, in a subsequent civil suit, as prima facie evidence of the facts upon which the conviction is based. We decline to do so, and find no error in the court’s decision on this evidence. In Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, the supreme court held that a battery conviction in a criminal case could be admitted into evidence in a subsequent personal injury suit, as prima facie evidence that the defendant had committed battery upon the plaintiff. In so doing, the court emphasized the seriousness of the criminal offense charged and the fact of defendant’s prior representation by counsel. Thornton adopted the rule as set forth in Smith v. Andrews (1964), 54 Ill. App. 2d 51, 55-63, 203 N.E.2d 160, wherein the appellate court held that certain criminal convictions were admissible in later civil proceedings, regardless of whether the offense was designated a felony or misdemeanor. An important focus in Smith v. Andrews, emphasized in Thornton, was the seriousness of the offense and the incentive to contest it, factors, which when present, lend credibility to the conviction. The court stated:

“We have taken pains to point out the nature of the proceeding which resulted in the defendant’s conviction, because the nature of the proceeding has an important bearing upon the admissibility of the conviction in a later case. From what we know about the steps which led to the conviction, there is every reason to believe that the conviction was the just result of the adversary process. The charge was a serious one, and the defendant, facing a serious penalty in the event of conviction, obviously had every incentive to make a vigorous defense. He was represented by counsel. He was tried by a jury. While we do not say that all of these elements must necessarily be present in order for the conviction to be admissible, we would not want our decision in this case to be interpreted as a holding that every conviction following a plea of not guilty is admissible in evidence in a later case involving the facts upon which the conviction is based. *** For example, our holding in this case would not be authority for the admissibility of a traffic court conviction in a later civil case arising out of a traffic accident. Defendants in traffic cases are frequently unrepresented by counsel, and the proceedings are relatively informal. In view of the comparatively modest penalty a defendant faces on a judgment of conviction, the charge is rarely contested with the vigor that characterizes the adversary system at its best.” 54 Ill. App. 2d 51, 61-62.

In the instant case, the defendant Veen did not appear on the traffic violation, but submitted to a bond forfeiture on the charge. There was no plea of guilty as an admission. (See Barnes v. Croston (1969), 108 Ill. App. 2d 182, 247 N.E.2d 1.) Defendant was unrepresented by counsel, did not appear, nor was hearing held on the charges. Furthermore, the sanctions for the offense were minor, and not such as to ensure the requisite adversary procedure. A bond forfeiture is even less an admission than a plea of nolo contendere, which, as a general rule has been denied admissibility in subsequent civil proceedings. (Annot., 18 A.L.R.2d 1287, sec. 5 (1951).) We find the court properly excluded from evidence the fact that defendant Veen had forfeited bond on the prior, minor traffic charge against him.

The next issue raised by plaintiff is whether the comments of defense counsel during closing argument were so prejudicial as to deprive the plaintiff of a fair trial. It is alleged that defense counsel improperly injected his personal opinion into the case in his argument to such an extent as to require reversal. Responding defense counsel notes that the argument from both sides was often heated and combative and asserts that on several occasions his comments were responsive to ■ statements from plaintiff’s counsel during closing argument. No useful purpose would be served by a cataloging of the various comments objected to. We have reviewed the arguments by both sides, with a careful eye to improprieties, and we find no reversible error. (See Goldstein v. Hertz Corp. (1973), 16 Ill. App. 3d 89, 370 N.E.2d 679. See also Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679.) The record herein reveals that counsel for each side felt strongly the correctness of his party’s position and expressed those feelings to the jury. The arguments from both counsel reflected those feelings, and the result was a combative atmosphere. There were improprieties in the argument, but given the overall tone, we find no reversible error. In Pumo v. Foltynewicz (1980), 82 Ill. App. 3d 178, 181, 402 N.E.2d 900, we found that although improper argument may have occurred in the court below, no reversal should result when the trial, as a whole, was fair and there was sufficient evidence to support the jury’s verdict. Here, while counsel may have overstepped the bounds of propriety, the record indicates a hotly contested case throughout trial, and the trial, as a whole, was fair. The sufficiency of the evidence to support the verdict was clear. We would also note, on this issue, that no objection was made by plaintiff’s counsel to the remarks and argument of the defense attorney. Contrary to suggestions by the plaintiff, the remarks herein do not rise to the level of prejudice found in the cases of Ryan v. Blakely (1979), 71 Ill. App. 3d 339, 389 N.E.2d 604, or Manninger v. Chicago & Northwestern Transportation Co. (1978), 64 Ill. App. 3d 719, 381 N.E.2d 383. Therefore, we do not agree with plaintiff’s argument that reversal is required because of the improper argument of defense counsel.

Plaintiff next alleges error in the trial court’s refusal to allow counsel to cross-examine defense expert witness Dr. Betasso concerning the plaintiff’s cervical spine. Plaintiff’s counsel stated that upon cross-examining Dr. Betasso, he discovered in the medical file a radiologist’s report which disclosed that there were post-traumatic changes in the plaintiff’s cervical spine. Counsel then sought to introduce the report into evidence and to interrogate Dr. Betasso concerning changes in the cervical spine, both based upon the discovery of the previously undisclosed X-ray report. On direct examination, Dr. Betasso was examined solely with respect to the condition of plaintiff’s lumbar spine, and no inquiry into the cervical spine was made on direct. The court refused to permit cross-examination on the cervical spine, finding that such questioning was beyond the scope of direct examination. It offered to permit counsel to call Dr. Betasso in rebuttal, which offer was not taken up by the plaintiff. Plaintiff did attempt to elicit testimony from Dr. Arellano, who had prepared the report, as a rebuttal witness, arguing that the X-ray report had been concealed from him despite a continuing motion to supplement discovery. The court ruled that any such examination was beyond the scope of the direct examination. Offers of proof, as to both Betasso’s and Arellano’s testimony, were made by plaintiff’s counsel. Neither offer of proof indicated severe post-traumatic changes in the plaintiff’s cervical spine. Moreover, plaintiff’s own medical witnesses fully addressed the question of changes in the cervical spine, and concluded that such changes had occurred. It is clear that the scope of cross-examination is limited to matters brought out on direct examination, and also that the scope of cross-examination rests within the discretion of the trial court. (Muscarello v. Peterson (1960), 20 Ill. 2d 548, 553-54, 170 N.E.2d 564.) However, as Muscarello indicates, in determining the scope of direct examination, the court should not give a narrow or technical application to the rule. (20 Ill. 2d 548, 553.) In Muscarello, the court found an abuse of discretion, where (1) the party had engaged in an intentional deception respecting a medical report; (2) the evidence therein went to a critical issue in the case; and (3) the rights of an infant were involved in the case. (20 Ill. 2d 548, 555.) In the instant case, there is nothing in the record to indicate any intentional deception on the part of defense counsel respecting the X-ray report. Counsel explained that he had not received the X-ray report, and could not provide what he himself had not received. Also, as defense counsel points out, plaintiff could have obtained Dr. Betasso’s entire file, had plaintiff subpoenaed it. Furthermore, the evidence sought to be introduced through cross-examination of Betasso was not of crucial importance to the plaintiff. Betasso and Arellano’s testimony, as brought forth in the offer of proof, indicated that there was no severe post-traumatic changes in the cervical spine. This testimony was not particularly helpful to the plaintiff, and, even assuming error, its omission, especially in light of defense expert evidence showing a severe post-traumatic change, was not such as to require a reversal. While the court could certainly have permitted the cross-examination, given the unexpected discovery of the previously undisclosed report, any error in refusing such cross-examination was not so prejudicial as to require a reversal, for the jury’s verdict is fully sustainable on the question of liability, apart of damages questions. We find no reversible error in the court’s decisions on these questions.

The final issue is whether there was an abuse of discretion in permitting the jury to begin deliberations at a late hour. The record indicates that the judge inquired of the jury whether they would prefer to get the case the day of closing arguments, or whether they would prefer to receive it the following day. The court noted the jury’s unanimous decision to begin deliberations after the close of evidence and closing arguments. There is no evidence of jury fatigue in the record, nor do we find that the speed of deliberations indicated fatigue. While there was considerable testimony and exhibits, the evidence of the plaintiff’s own negligence as the proximate cause was not unduly complex. Nor do we find evidence that counsel’s condition, from not having eaten, interfered with his arguments to the jury. In short, we find no prejudice and no abuse of discretion from the case having been submitted to the jury at the hour at which it was submitted.

For the reasons stated, the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


author: PRESIDING JUSTICE WEBBER

text:
    PAUL M. MISCH, Adm’r of the Estate of Lyle W. Leichtenberg, Plaintiff-Appellant, v. MEADOWS MENNONITE HOME et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0639
    Opinion filed May 25, 1983.

      Bane, Allison, Saint & Ehlers, P.C., of Bloomington (Randall B. Ehlers, of counsel), for appellant.
    Costigan & Wollrab, of Bloomington, for appellees.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff brought suit against the defendants pursuant to sections 1 and 2 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, pars. 1, 2). The cause was tried to a jury in the circuit court of McLean County and a verdict was returned in favor of the defendants and against the plaintiff, who appeals.

Defendant Beck was an employee of defendant Meadows Mennonite Home and was operating a bus owned by the Home in transporting some elderly persons back from a shopping trip in Bloomington. The bus was proceeding in an easterly direction on Illinois Route 9 between Bloomington and Colfax. Beck intended to turn left at the Cooksville-Ellsworth blacktop road but overshot the intersection. She slowed down and was turning into a farm lane east of the blacktop preparatory to turning around to return to the blacktop. During this maneuver the bus was struck in the left rear by a truck driven by plaintiff’s decedent, Lyle Leichtenberg, who died as a result of the collision.

Leichtenberg’s truck was hauling hot asphalt to a road construction project several miles east of the blacktop. This activity had been going on all day and he was on his final delivery when the collision occurred at about 3:15 p.m. on June 26,1980.

On appeal plaintiff has raised a variety of issues which may be generally grouped as follows: (1) error in certain instructions to the jury; (2) error in certain evidentiary rulings; and (3) a verdict against the manifest weight of the evidence. Additional factual matters will be developed as necessary in the discussion of the issues.

Overarching the instruction problems is the fact that both the pleadings and the instructions were hybrids, partaking of both comparative negligence (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886) and contributory negligence. They appear to us to be mute testimony to the fact that deeply ingrained notions die hard with the legal profession which is, on the whole, traditionalist.

Plaintiff’s complaint was in the usual form, seeking damages under the Wrongful Death Act for the next of kin, expenses for medical, hospital, and ambulance services, and for funeral and burial expenses, and damages for the pain and suffering of the decedent from the time of the accident until his death. Defendants’ answers were also unremarkable, being in the nature of a general denial on all counts. About three weeks before trial plaintiff obtained leave and filed an amendment to the complaint which expanded and amplified the specified allegations of negligence. Defendants filed answers to the amended complaint and set up as an affirmative defense the negligence of plaintiff’s decedent, which they alleged alternatively was either “the sole proximate cause” or “a contributing cause” of the occurrence. They then asked that either recovery should be denied or proportionally reduced. Plaintiff filed a reply to the affirmative defense in the nature of a general denial.

This pattern, created by the pleadings, carried over into the instructions. While the jury was thoroughly instructed in comparative negligence and furnished with verdict form reflecting that doctrine, the abolished doctrine of contributory negligence crept in. We note in passing that the same affliction beset the drafters of the “A” Series of Illinois Pattern Jury Instructions (IPI), Civil (1981 Supp.). Many of their comments and notes on use refer to “contributory negligence,” although as we understand Alvis, no such concept any longer exists.

Plaintiff complains specifically about defendants’ burden of proof instruction and his own issues instruction. The burden of proof instruction stated:

“The plaintiff has the burden of proving each of the following propositions:
First, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;
Second, that the plaintiff’s decedent sustained injuries and died;
Third, that the negligence of the defendants was a proximate cause of the death of the plaintiff’s decedent.
In this case the defendant has asserted affirmative defenses:
a. That the plaintiff’s decedent in the operation of his motor vehicle was contributorily negligent and that said negligence was the sole proximate cause of the plaintiff’s decedent’s death.
The defendant has the burden of proving these defenses.
If you find from your consideration of all the evidence that each of the propositions required of the plaintiff has been proved and that none of the defendants’ affirmative defenses have been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence, that any one of the propositions the plaintiff is required to prove has not been proved, or that any one of the defendants’ affirmative defenses has been proved, then your verdict should be for the defendants.” IPI Civil No. A21.03 (1981 Supp.).

The issues instruction was originally submitted by the defendants but then withdrawn by them. It was resubmitted by plaintiff and stated:

“The plaintiff claims that plaintiff’s decedent sustained injuries and died and that the defendants were negligent in one or more of the following respects:
a. Failed to give appropriate signal of her intention to either stop her vehicle or to turn her vehicle when the decedent’s vehicle was immediately to the rear.
b. Failed to give appropriate signal of her intention to turn her vehicle not less than the last two hundred feet traveled before turning.
c. Failed to turn her vehicle into a private road or driveway until such movement could be made with reasonable safety.
d. Failed to keep her vehicle under proper control.
e. Failed to keep a proper lookout.
f. Failed to yield the right-of-way to the decedent’s vehicle which was in the process of overtaking her vehicle.
g. Failed to move her vehicle from the lane in which she was traveling until she had first ascertained that such movement could be made with safety.
h. Failed to have a mirror installed to reflect the driver’s view of the highway for a distance of at least two hundred feet to the rear of said vehicle.
The plaintiff further claims that one or more of the foregoing was a proximate cause of the injuries which occasioned the decedent’s death.
The defendants deny that they did any of the things claimed by the plaintiff, deny that they were negligent in doing any of the things claimed by the plaintiff and denies that any claimed act or omission on the part of the defendants were the proximate cause of the plaintiffs decedent’s death.
The defendants further claim that the plaintiff’s decedent was contributorily negligent in one or more of the following respects:
a. That the plaintiff’s decedent operated his motor vehicle in a negligent manner at the time of the occurrence.
b. That the plaintiff’s decedent operated his motor vehicle at a speed that was greater than reasonable and proper with regard to traffic conditions and the use of the highway.
c. That the plaintiff’s decedent drove his motor vehicle to the left of the center of said highway at a time when the vehicle operated by the defendants was signaling for a left-hand turn.
d. By failing to apply brakes when the application of brakes was reasonably necessary to insure the safe operation of the motor vehicle.
e. By failing to sound an audible warning of the approach of said vehicle when the giving of an audible warning or honking of his horn was reasonably necessary to insure the safe operation of his said motor vehicle.
That the defendants further claim that one or more of the foregoing was the sole or a proximate cause of the plaintiff’s decedent’s death.
That the plaintiff denies that the plaintiff’s decedent did any of the things claimed by the defendants, denies that he was negligent, and denies that any claimed act or omission on the plaintiff’s decedent’s part was a proximate cause of the claimed injuries.
The defendants further deny that the plaintiff’s estate sustained damages to the extent claimed.” IPI Civil No. A20.01 modified (1981 Supp.).

Plaintiff argues that these instructions, taken together, were confusing to the jury and would prompt the jury to find for the defendants if the plaintiff’s decedent were guilty of any negligence — in effect, a return to contributory negligence. He also argues that the emphasis on sole proximate cause does not cure the error, but only magnifies it because of the stress placed upon it, a single issue, contrary to the spirit of Alvis.

While plaintiff is correct in his theory that contributory negligence is no longer a bar to recovery but that a plaintiff’s negligence, if any, goes only to the diminution of his damages (compare the Comment to IPI Civil No. A20.01, at 19 (1981 Supp.)), as a practical matter he has failed to preserve the issue. Wlien the matter was first raised by defendants’ answer to the amended complaint, plaintiff did not move to strike the affirmative defense but replied to it. At the instruction conference plaintiff’s counsel did not object to defendants’ burden-of-proof instruction on the basis that there was no affirmative defense as such, but rather objected that the instruction on affirmative defenses should go only to the diminution of damages. The first time in the record that it is clear that plaintiff argued the defective nature of the affirmative defense was in his post-trial motion. Objections to instructions not raised at the instruction conference cannot be urged on appeal. Young v. Gateway Transportation Co. (1975), 26 Ill. App. 3d 864, 326 N.E.2d 222.

As to the issues instruction, we have already noted that while it was drafted by defendants’ counsel, it was withdrawn, but plaintiff’s counsel submitted it in haec verba. One cannot complain about his own instruction. Ervin v. Sears, Roebuck & Co. (1976), 65 Ill. 2d 140, 357 N.E.2d 500.

It is evident that some confusion existed in the jury room. During deliberations the jury submitted a handwritten question to the trial judge: “Can you clarify the difference between proof of an affirmative defense and proof of contributory negligence?” After consultation with both counsel, the trial court gave a supplementary instruction as follows:

“If you find that contributory negligence of plaintiff’s decedent, if any, was the sole proximate cause of the injury and death of plaintiff’s decedent, then your verdict should be for the defendants.
If you find that contributory negligence of plaintiff’s decedent, if any, was a proximate cause of the injury and death of plaintiff’s decedent and that negligence of the defendants was a proximate cause, then you should apportion fault as per previous instructions.”

We find that this supplement corrected stated the law and served to allay any confusion in the jury’s collective mind.

No error occurred regarding these instructions. However, we would call attention, as forcibly as possible, to the trial bench and bar the statement in the Introduction to the Special Supplement containing “A” Series Instructions on Comparative Negligence, wherein the committee states:

“We leave any further resolution of this and other collateral issues to future decisions of the courts or to future legislation. We invite the Bench and Bar of Illinois to employ such ingenuity as is necessary to tailor these instructions to foster resolution of such issues.” (IPI Civil at 5 (1981 Supp.).)

We, too, strongly urge that all instructions be carefully scanned and if necessary edited to meet the revolution wrought by Alvis.

Plaintiff makes a further objection to an instruction tendered by defendants and given by the court. It was IPI Civil No. 36.01 (2d ed. 1971) which states, “If you decide for the defendants on the question of liability, you will have no occasion to consider the question of damages.” Plaintiff argues that the word “liability” relates to contributory negligence and has no place in comparative negligence. We disagree. Liability is a chief element in any negligence action, whether it be comparative or otherwise. Alvis did not eliminate liability from the law; it eliminated contributory negligence on the part of the plaintiff as an absolute bar to recovery and substituted comparative negligence of the parties. If a defendant is guilty of no negligence, i.e., not liable, there is nothing to compare. The instruction is still proper, although it is reiterative and rather meaningless, and so should be used sparingly.

The evidentiary issues relate principally to the refusal of the trial court to allow two experts to testify on behalf of the plaintiff. The first was a reconstruction expert whose testimony would have related to the point of impact, the location of the vehicles in relation to one another at the point of impact, the speed of the vehicles at the point of impact, the movement of the vehicles after the impact, and a description of the maneuver which plaintiff’s decedent was attempting as indicated by the tire marks on the pavement.

The law in Illinois has been clearly established that eyewitness testimony is preferred over reconstruction testimony. (Plank v. Holman (1970), 46 Ill. 2d 465, 264 N.E.2d 12; McGrath v. Rohde (1972), 53 Ill. 2d 56, 289 N.E.2d 619; Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1.) Defendant Beck testified that she turned on her turning signal about two bus lengths from the farm lane. The length of the bus was 27 feet. She also testified that she looked into her rear view mirrors prior to turning on the signal and saw nothing. James Houchens, a passenger on the bus, testified that he saw the truck twice. The second time it was 200 to 300 feet behind the bus in the eastbound lane. Both Beck and Houchens testified that the bus was partly into the lane when it was struck.

Plaintiff argues that there were no eyewitnesses to the last 200 feet of the movement of the truck. His theory was that the impact was well within the eastbound lane and that Beck was having difficulty making her turn into the farm lane. The expert testimony would have established that the impact was in the eastbound lane.

We find no error in the barring of the reconstruction expert. In addition to the testimony of Beck and Houchens, there was extensive testimony of a physical nature, i.e., location and length of tire marks, location and damage to the vehicles, scuff and gouge marks on the pavement, and similar matters. Reconstruction testimony cannot be used solely to contradict the testimony of eyewitnesses and the physical evidence. (National Bank v. Pickens (1972), 8 Ill. App. 3d 58, 289 N.E.2d 64; Dauksch v. Chamness (1973), 11 Ill. App. 3d 346, 296 N.E.2d 592.) It is not necessary that eyewitnesses see everything which occurred. (Plank.) It is sufficient if they can relate circumstances from which the impact might reasonably be inferred. That is what happened here.

Plaintiff’s second expert who was barred had been in the trucking business for 28 years and had driven both buses and trucks similar to the ones involved here. If allowed to testify, he would have said that the turning maneuver attempted by the bus driver would have been a difficult one involving a 90-degree turn. From this plaintiff argues that it would be apparent that the bus was straddling both lanes of the highway so as to prevent plaintiff’s decedent from avoiding the collision. In addition, the expert would have testified about the truck and its driver to the effect that under the same circumstances it would be proper to attempt a gradual turn by applying the brakes gradually and not locking them; the latter would have caused the driver to lose control. Plaintiff claims this evidence was essential to his case since there was little other evidence of lack of negligence on the part of his decedent.

Whether expert testimony should be introduced is a matter within the discretion of the trial judge. (Phillips v. Shell Oil Co. (1973), 13 Ill. App. 3d 512, 300 N.E.2d 771.) We cannot say as a matter of law that turning a school bus is so arcane a subject as to require expert testimony in order for a jury to understand it. As for the operation of the truck, the obvious purpose of this testimony would be to establish that the driver was acting as a reasonable person. This is a conclusion to be drawn by the jury from all the facts and circumstances and opinion evidence would invade their province. Opinion evidence on an ultimate fact is proper when the fact is beyond the ken of the average juror, e.g., whether a physician used the proper skill; but in this case as with the bus, we cannot say as a matter of law that an expert opinion concerning the operation of the truck would have been helpful to the jury in its determination of an ultimate question of fact. The rulings of the trial court of the introduction of the expert testimony were correct.

Plaintiff’s next evidentiary issue relates to the testimony of defendant Beck and the witness Houchens. One of plaintiff’s theories of negligence on the part of Beck was her failure to give an appropriate turning signal in violation of section 11 — 804 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 804) which requires that a turning signal be given continuously and not less than 200 feet traveled in a rural area. Beck testified under cross-examination that she turned her signal on approximately two bus lengths from the farm lane. It was established that the bus was 27 feet 6 inches long. Plaintiff therefore argues that Beck made a judicial admission that her signal was activated only about 60 feet from the turning point in violation of the statute. Houchens testified that the signal was on about one-quarter of a mile from the turn. Plaintiff maintains that Houchen’s testimony should have been barred because of Beck’s admission.

The subject of a party’s testimony as a conclusive admission has become somewhat of a legal quagmire. It is best summarized by Professor Wigmore:

“[C]an it be said that a party’s testimony on the stand as a witness may sometimes amount to a judicial admission?
There is a temptation to accept such a principle, especially in personal injury litigation, where the shiftiness of perjured or biased witnesses often creates for the Court a wish to see the issue tied down to narrow limits, eliminating the range of mere speculation or manufactured testimony. Some Courts of recent years have accepted the principle with plausible if not convincing reasoning.
* * *
In the first place, the proposed rule is not a simple rule of thumb, but a flexible one, requiring especial judicial wisdom for its sound application. Therefore, while seeking justice, it might often do injustice. In the second place, it affords one more ground for an appeal on a question of law, and thus one more element of delay and technical disputation. In the third place, its purpose can usually be as well attained by a ruling upon the insufficiency of evidence for the jury ***. In the fourth place, and chiefly, it assimilates testimony on the stand to formal deliberate admissions. But testimony cannot be treated that way. Testimony in court is an elusive matter of mental operations. It is the culmination of much talk and reflection and memory-stirring between all concerned. It is full of surprises at the trial. The truth of the case depends on a comparison of what all the witnesses say and all the circumstances indicate. A rule which binds a party to a particular statement uttered on the stand becomes an artificial rule. It is out of place in dealing with testimony. Let the judge test each case by itself.” 9 Wigmore on Evidence sec. 2594(a), at 597-601 (3d ed. 1940).

Wigmore’s thesis has been adopted in Illinois:

“While defendants maintain this testimony, standing alone, is a judicial admission of contributory negligence barring plaintiff’s recovery, we have previously held (McCormack v. Haan, 20 Ill. 2d 75) that while a party may, by his own testimony conclusively bar his claim or his defense, a determination that he has done so depends upon an evaluation of all of his testimony, and not just a part of it, as well as an appraisal of his testimony in the light of that of the other witnesses and a consideration of their respective opportunities to observe the facts about which they testify. McCormick on Evidence, pp. 513-516; 9 Wigmore on Evidence, 3rd ed., sec. 2594(a).” Carter v. Winter (1965), 32 Ill. 2d 275, 282, 204 N.E.2d 755, 759.

An examination of all of Beck’s testimony indicates that her statement about two bus lengths was at best an educated guess. She had previously been asked at what point she started slowing down and in response stated that it was halfway between two farm lanes. (She had said that she originally intended to turn into a lane west of where she ultimately turned, but elected to go on east to a second lane where the accident occurred.) When asked about that distance, she stated, “*** probably 41/2 car lengths or something like that.” Another witness who lived on the first farm lane testified that the distance between the lanes was one-half mile.

Beck’s statement about two bus lengths was not a judicial admission binding on the defendants, and the testimony of Houchens was properly received.

Plaintiff’s final contention is that the verdict of the jury was against the manifest weight of the evidence. He maintains that under comparative negligence any negligence on the part of Beck entitles him to a new trial and points to three instances of conduct by Beck which he claims were negligent. First, the matter of the turn signal which we have already discussed. Second, there was testimony by Beck that she did not see the truck prior to the collision. Third, the attempted maneuver of turning a bus from a two-lane highway into a farm lane. Additionally, plaintiff again argues for the reconstruction testimony, saying that it would have established that the bus was in the eastbound lane of the highway and not into the farm lane.

While the evidence is close, we do not feel that the verdict was against the manifest weight of the evidence. We would be compelled to choose between conflicting evidence and inferences therefrom. (Compare Trauscht v. Gunkel (1978), 58 Ill. App. 3d 509, 374 N.E.2d 843.) The timing of the turn signal on the bus has already been dealt with at length above. Whether Beck looked or did not look, or whether she looked but did not see, depends upon Houchen’s testimony that he saw the truck about 200 feet away — a clear case for jury determination. The physical evidence, particularly the position of the vehicles after the impact, is determinative of the skill and prudence of the turning maneuver. All these, and more, were decided by the jury adversely to the plaintiff. The opposite result is not palpably clear and convincing.

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

Affirmed.

MILLS and MILLER, JJ., concur.