Beery v. Breed

• Decision Date: 07 October 1941
• Docket Number: Gen. No. 9683.
• Citation: 36 N.E.2d 591,311 Ill.App. 469
• Parties: BEERY v. BREED ET AL.
• Court: United States Appellate Court of Illinois

311 Ill.App. 469

36 N.E.2d 591

BEERY

v.BREED ET AL.

Gen. No. 9683.

Appellate Court of Illinois, Second District.

Aug. 7, 1941.

Rehearing Denied Oct. 7, 1941.

Appeal from Circuit Court, Henry County; Leonard E. Telleen, Judge.

Action by Harvey T. Beery against Robert B. Keeler and others for injuries sustained in an automobile accident. From an adverse judgment, defendant Ralph H. Breed, administrator of the estate of Nellie M. Breed, deceased, appeals.

Affirmed. Thomas J. Welch and Vera M. Binks, both of Kewanee, for appellant.

Andrews, Young & Andrews, of Kewanee, for appellee.

DOVE, Justice.

This cause is here by appeal from a judgment of the circuit court of Henry County for $10,000 as damages in an automobile accident case. At the close of the plaintiff's evidence, the defendant's motion for a directed verdict was denied, he offered no testimony, and the case went to the jury on the testimony of the plaintiff's witnesses alone.

The original complaint was against Robert B. Keeler. Appellant was added as a defendant, with an averment that Keeler was driving the Breed car as the agent or servant of Nellie M. Breed. The answer denied this charge, but it is not questioned here. Keeler was not served and is not a party to this appeal.

Under the claim that the court erred in denying appellant's motion for a new trial, it is urged that the evidence is not sufficient to show appellant's intestate or the driver of her car were guilty of the negligence charged or that appellee was in the exercise of due care for his own safety. In a prior case appellee's wife recovered judgment against appellant for $5,330 as damages for injuries received in the same accident. The judgment was affirmed by this court. Beery v. Breed, 309 Ill.App. 433, 32 N.E.2d 675.

The accident occurred on October 14, 1938, about 3:15 P.M., at the Howard Schoolhouse curve on U. S. Route 6, about five miles west of Geneseo. Route 6 is an east and west highway. It curves to the south around the schoolhouse. The Beery car was travelling northwesterly on the curve and the Breed car southeasterly. Appellee, his wife and their son Harvey Lee Beery, nine years old, were in the Beery car. It was being driven by appellee. In the Breed car were appellant's intestate, Nellie M. Breed, her daughter, Audrey Breed, and Robert B. Keeler, her grandson. The latter was driving the Breed car. As a result of the accident appellee, his wife and Robert B. Keeler were severely injured. Nellie M. Breed and her daughter died from their injuries soon afterward.

The testimony on behalf of appellee clearly shows that at the time of the accident he had driven off the right or northerly edge of the pavement about two feet in an attempt to avoid the Breed car, which came down that side of the slab and crashed into the Beery car. Appellee's son testified he first saw the Breed car coming fast over a rise in the road to the west; that he looked at a house and barn, and when he looked back the Breed car was right there, and that appellee turned off the road just before the witness saw the Breed car the second time. Two witnesses, Johnson and Bell, who arrived after the accident, testified there were tire marks in the dust on the right hand side of the pavement about two feet from it, leading back fifty feet from the Beery car. The testimony of other witnesses shows that after the accident both cars were north of the center line of the pavement. Slight differences in their testimony as to the exact location of each car are only such as are usual in such cases. None of them are of any importance. There were some scratches on the pavement north of the center line, running northeasterly toward the Beery car, with the appearance of having been made by a car frame. The argument that they were made by the Beery car and show it was not off the pavement is not supported by any fact in evidence. The testimony on behalf of appellee clearly sustains the negligence charge and his due care.

Appellee is a barber thirty-six years of age. Prior to the accident he was in normal physical condition and in good health. His injuries consisted of cuts and bruises on his body, his left hip was partially dislocated, and his nose was crushed almost level with his face, which was badly lacerated. The tissues were pretty well severed. His upper jaw was fractured, extending through the eye socket, and was loose like an artificial plate. Several teeth were knocked out. He was in a hospital two weeks. His jaws were wired together for three months and he was unable to take solid food for four months. The jaw was still somewhat movable at the time of the trial about a year and a half after the accident. His left eye bulged with an exopthalmic aspect. He testified his face is numb, his eye is sore and drains continuously at the corner, with a blinking and eye strain; that his nerves are jumpy; that he has a stomach ailment and is restless at night; that he was unable to work for four or five months and could only partially superintend his shop for three or four months more, and cannot now do a full day's work. Medical testimony shows the conditions are permanent, and that his wife is physically and mentally incompetent as a result of her injuries. The complaint includes a claim for damages on account of the loss of her services. The record shows he employed six physicians and surgeons in treating his injuries, and is still under medical care. He paid $664.85 for his hospital, nurse and doctor bills, and still owes some of the doctors. He paid approximately $800 for help at home. His car was worth $400, and after the accident he was allowed $35 or $40 for it in a trade for a new car.

Appellant urges that inasmuch as he introduced no evidence, repeated comments by appellee's counsel in his closing argument upon the failure to do so, and particularly the failure to produce Keeler, constituted reversible error. Each objection interposed was promptly sustained. Appellee claims the remarks were proper replies to the argument of appellant's counsel. While that argument is not shown by the abstract, the language of the closing argument discloses that in a large measure the matter objected to was in reply to statements of appellant's counsel.

It is impracticable to detail the remarks complained of. The substance of them is that appellee proved his case and that appellant brought no witness but attempted to argue facts not in evidence, claiming there was no eye witness except appellee's son; that Keeler was an eye witness and appellant did not produce him; that appellant's counsel asked why appellee did not bring in another witness to the tire marks in the dust, to which he replied: “Why didn't they bring in a witness there wasn't any tracks?”; that appellant's counsel said the accident was caused by centrifugal force, but it was the driver's duty to avoid such a force, and that Keeler was the name for centrifugal force. Asking if the argument of appellant's counsel was reasonable, he said that if they wanted to show facts they could do so, and: “When they sit in court and don't bring witnesses it leaves it up to you to conclude they must be satisfied with the facts we brought in here and brought in all the proofs. They say they want the truth. Why don't they bring in witnesses to prove the facts?” He also said: “I will say this, they keep talking about there isn't any witness, there is a witness here, there is a real witness to this collision who absolutely saw the accident and was there and is guilty of negligence charged in this suit and that is Robert B. Keeler and he is the grandson of this man.” The argument as a whole clearly shows the word “here” related to the lawsuit or occurrence and not the court room. He later said: “I say they have testimony that is available here, that is contrary to what we say and don't bring him in here and absence may be proof of the fact _____” He was here interrupted before he finished the sentence by an objection which was sustained. What fact he would have mentioned if he had not been interrupted, is not a matter for our conjecture.

The books are replete with decisions, in cases where both parties produced testimony, that the failure of one party to bring in an accessible witness, gives rise to the presumption that the testimony of the absent witness would be unfavorable to the party failing to produce him. Cases where a defendant failed to produce any evidence, but rested his defense upon the weakness of the testimony of the plaintiff's witnesses, are not so numerous. We first note that there is no showing that the testimony of Keeler, one of the defendants, was not readily accessible to appellee.

Analysis of the decisions in various jurisdictions discloses that there is but little, if any, difference in the basic principles announced. What might appear to be a lack of harmony on cursory examination is due in some degree to whether the plaintiff made a prima facie case. Wigmore's Evidence, (Third Edition 1940) sec. 285, says: “The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.” In Section 290(5) it is stated: “the opponent whose case is a denial of the other party's affirmation has no burden of persuading the jury. A party may legally sit inactive, and expect the proponent to prove his own case. Therefore, until the burden of producing evidence has shifted, the opponent has no call to bring forward any evidence at all, and may go to the jury trusting solely to the weakness of the first party's evidence. Hence, though he take a risk in so doing, yet his failure to produce evidence cannot at this stage afford any inference...