Brumley v. Federal Barge Lines, Inc., 78-516

• Decision Date: 13 November 1979
• Docket Number: No. 78-516,78-516
• Citation: 396 N.E.2d 1333,78 Ill.App.3d 799,33 Ill.Dec. 609
• Parties: , 33 Ill.Dec. 609 Ruth McKinney BRUMLEY, Executor of the Estate of Gordon Brumley, Deceased, Plaintiff-Appellee, v. FEDERAL BARGE LINES, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1333

396 N.E.2d 1333

78 Ill.App.3d 799, 33 Ill.Dec. 609

Ruth McKinney BRUMLEY, Executor of the Estate of Gordon Brumley, Deceased, Plaintiff-Appellee, v. FEDERAL BARGE LINES, INC., Defendant-Appellant.

No. 78-516.

Appellate Court of Illinois, Fifth District.

Nov. 13, 1979.

Thompson & Mitchell, Raymond L. Massey, East St. Louis, for defendant-appellant.

Jerome J. Schlichter, David J. Letvin, Cohn, Carr, Korein, Kunin, Schlichter & Brennan, East St. Louis, for plaintiff-appellee.

KARNS, Justice:

Plaintiff, Gordon Brumley, brought this action in the Circuit Court of St. Clair County under the Jones Act (46 U.S.C. § 688) to recover damages for personal injuries allegedly caused by the negligence of defendant, Federal Barge Lines, Inc. The jury returned a verdict of $84,000 in favor of plaintiff upon which judgment was entered. Defendant now appeals from the denial of his post-trial motion for judgment N. o. v., a new trial or a substantial remittitur. Brumley died following the filing of notice of appeal and his widow has been substituted as plaintiff-appellee.

The facts established that on January 9, 1973, Brumley, a towboat captain employed by defendant, reported to work at the Gasconade Street landing on the Mississippi River in St. Louis, Missouri. There he was to board the m/v United States, a vessel belonging to defendant. To reach the vessel, Brumley had to walk along a narrow and icy dirt ledge on the river bank to a landing barge, alongside which the m/v Missouri was docked. The Missouri would then take Brumley to the m/v United States operating downstream.

While Brumley was walking across the narrow and icy ledge, he found it necessary to walk sideways and hold on to weeds growing along the path for support. Before he reached the landing, he slipped and fell backwards against the barge as the ledge collapsed and broke away from under his feet. Despite experiencing pain in his back, Brumley boarded the m&61v United States and took over as its pilot.

Brumley, 63 years old at the time of trial, did not miss any work from the date of the injury until trial as a result of his fall; however, he testified that he still had severe leg and back pain. Dr. James Bradley, Brumley's son-in-law and treating physician, testified by deposition that plaintiff's fall on January 9, 1973, caused injury to the lower back which aggravated a pre-existing condition of osteoarthritis.

On appeal, defendant first contends that the trial court erred in allowing a 72 year old river pilot, Arthur Zimmer, to testify as an "expert witness," so characterized by the parties, as to the availability of employment for riverboat pilots who were more than 65 years old. Defendant maintains that it was surprised and prejudiced by such testimony because plaintiff had not given defendant prior notification of his intention to call the witness and because the testimony related to Brumley's loss of future earnings, which defendant claimed it reasonably and in good faith believed would not be an element of plaintiff's damages. Thus, a major controversy in this case concerns the propriety of plaintiff raising the issue of lost earning capacity for the first time at trial.

The facts established that prior to trial, plaintiff made an oral motion In limine to prohibit defendant from revealing Brumley's income, or medical expenses incurred as a result of the injury as he was not seeking damages for lost wages or Medical costs. In a discussion following the motion, counsel for plaintiff stated in the presence of the court and defense counsel that he was seeking damages for the "nature, extent and duration of the injury, aggravation of the pre-existing condition, pain and suffering and disability" for being unable to engage in non-employment related activities. Plaintiff's counsel did not state at this time that he was not asking for damages related to lost earning capacity.

At trial, Brumley testified that he intended to work as long as he was able. He added that there would continue to be employment for a man of his age and experience and that he planned to work beyond the age of 65.

Dr. Eli Shuter, a neurologist, testified on behalf of plaintiff. His testimony reveals that he first saw Brumley on June 6, 1977, at which time he took an extensive medical history and conducted a thorough examination of Brumley's back and lower extremities, including neurological tests. On the basis of his examination and x-rays taken in 1973, 1975 and 1977, the doctor diagnosed Brumley as suffering from "aggravation of severe degenerative arthritis of the lumbrosacral spine" and "severe lumbrosacral strain." A subsequent visit on May 2, 1977, shortly before trial, which visit included an updated medical history, another examination of the lower back and extremities and an electromyogram, led Dr. Shuter to make an additional diagnosis that Brumley also suffered from reticulitis, the squeezing or compression of the nerve roots. Following a lengthy hypothetical question incorporating Brumley's testimony, the testimony of Dr. Bradley, who had testified as to his examination and treatment of Brumley, and Dr. Shuter's findings, Dr. Shuter concluded that Brumley's lower back injuries were caused by the fall. He added that the injury was permanent; that no cure was available; and that the pain would increase because arthritis is a progressive disease. Over objection, he thereafter concluded that in his opinion Brumley would be able to continue working as a riverboat captain for only a period of six to eighteen months before the injury would become too painful.

Arthur Zimmer, the 72 year old river pilot, was the next witness called by plaintiff. Defendant objected to the pilot testifying and moved to exclude the testimony, or, in the alternative, for a continuance on the basis of surprise. Counsel for plaintiff responded that the present version of subsection (3) of section 58 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 58(3)), requiring the disclosure of expert witnesses upon motion, was not applicable at the time of trial; that he had no duty to furnish defendant with the so-called expert's identity; and that he had no intention of calling the witness until the night before because he did not believe until then that plaintiff would have a claim for future lost earnings. We note that prior to trial defendant had asked plaintiff by written interrogatory to identify all expert witnesses who had been consulted by plaintiff with respect to this case. Plaintiff, in answering the interrogatory, had not furnished the name of Arthur Zimmer.

Counsel admitted that he originally had no plans to claim loss of future earnings but indicated that he had changed his opinion upon hearing Dr. Shuter's testimony and receiving the medical report of a Dr. Gold, a physician who had examined Brumley on behalf of defendant approximately a week and a half to two weeks before trial. The report, which had not been furnished to plaintiff until after the first day of trial, indicated that Brumley was suffering from "lumbar osteoarthritis with radiculopathy" and further indicated that if the pain in the lower extremities became intolerable, the doctor would consider "lumbar myelography." It is plaintiff's counsel's contention that the findings of the report, belatedly given to plaintiff, contributed to his decision during trial to seek damages for loss of future earnings as this report diagnosed a possible ruptured disc and, therefore, to call Captain Zimmer as a witness.

The court offered defendant a day and a half recess for the purpose of questioning Zimmer and securing witnesses to rebut his testimony. In addition, it offered defendant the opportunity to recall Brumley for further cross-examination and suggested that defendant call Brumley as a witness pursuant to section 60 of the Civil Practice Act. (Ill.Rev.Stat.1977, ch. 110, par. 60.) Defense counsel, however, claimed that the prejudice to defendant could not be cured and requested a mistrial. The court responded by permitting Zimmer to testify. We note, however, that prior to hearing Zimmer's testimony, defense counsel talked at length with the witness during a noon recess.

Captain Zimmer, 72 years old at the time of trial, testified that he has had his river pilot's license since 1944 and his master's license since 1948. He indicated that he still works on the river and further indicated that so long as a pilot or master is qualified he can find all the work he wants, even though he may be over 70 years old. The plaintiff testified to the same effect.

At the conclusion of plaintiff's case, defendant stated that it would present no evidence or witnesses on its behalf. Thereafter, the jury returned a verdict in favor of plaintiff.

Initially, we note that the law is clear that plaintiff was not required to furnish Captain Zimmer's name prior to trial. Subsection (3) of section 58 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 58), which now requires disclosure of the identity of expert witnesses upon motion of the opposing party, was inapplicable at this trial. Furthermore, plaintiff's list of experts, prepared in response to defendant's supplemental interrogatories, was complete and accurate at the time it was furnished to defendant. Plaintiff, therefore, did not violate any discovery rule or order and defendant does not argue to the contrary.

Defendant, nevertheless, claims it was surprised by plaintiff calling Zimmer as an expert witness and introducing evidence of loss of future earnings. Whatever surprise, if any, was suffered by defendant, we believe, did not result in prejudice to its case. Defendant can hardly claim surprise when proper preparation for trial would lead defendant to anticipate or be arguably on notice of the potential issues of loss of earning capacity and future wages. (See Burns v. West Chemical Products, Inc., 12 Ill.App.3d 947, 299 N.E.2d 455 (1st Dist. 1973...