Caley v. Manicke
| Decision Date | 23 February 1961 |
| Docket Number | Gen. No. 11423 |
| Citation | 173 N.E.2d 209,29 Ill.App.2d 323 |
| Parties | Charles CALEY, Appellee, v. Daniel MANICKE, Appellant. |
| Court | United States Appellate Court of Illinois |
Sears, Streit & Tyler, Aurora (John E. Dreyer, Marvin D. Dunn, Chicago, of counsel), for appellant.
Blowitz & Ozman, Chicago (Nat P. Ozman, John G. Phillips, Chicago, of counsel), for appellee.
Plaintiff sued for personal injuries and recovered $20,000. Defendant assigns the following errors: (1) Striking of evidence going to the issue of proximate cause; (2) Plaintiff's 'per diem' argument; (3) The use of a chart in connection therewith; (4) Prejudicial statements in argument; and (5) Instructions. We will discuss them in that order with particular emphasis on the first three.
The proximate cause issue is somewhat involved. During the cross-examination of plaintiff, defendant elicited admissions that he had been involved in automobile accidents both before and after the occurrence sued on. This occurrence took place on April 16, 1956 while plaintiff was driving to work. The evidence showed that after crossing an intersection defendant had crashed into him from the rear resulting in severe 'whip-lash' injuries. The cross-examination, to which plaintiff made timely objection, is as follows:
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'The Court: Are you going to connect it up?
'Defendant's Counsel: Yes, I am.
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'The Court: Connect it up?
'Defendant's Counsel: Sure I am, your honor.
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Defendant offered no evidence to 'connect' these accidents with plaintiff's injury, and instead argues, that when viewed in connection with plaintiff's own medical testimony, there is a sufficient connection shown, that even standing alone, there is a sufficient relationship, and that in any event, no duty devolved on him 'to connect it up', because the burden of proof on the issue of proximate cause is always with the plaintiff and never shifts. The trial court disagreed, struck the testimony and instructed the jury to disregard it. Defendant says that in doing so, the court was improperly shifting the burden of proof to his shoulders and in effect, was directing a verdict against him on the issue of proximate cause, that is, that the court was telling the jury that these accidents had nothing to do with plaintiff's injuries and, by the same token, that plaintiff had, as a matter of law, shown a causal relationship between his injuries and the accident sued on. Defendant also argues that this redounded to the benefit of plaintiff by heightening the credibility of his medical witnesses.
The general rule is that the burden of proof rests on the party who has the affirmative of the issue, as determined by the pleadings, and the usual test employed to determine on which side the burden of proof lies, is to ascertain which party would be entitled to a verdict if no evidence were offered. While the burden of going forward with the evidence may shift from party to party, the burden of proof never shifts during the course of the trial and remains on the party asserting the affirmative of the issue. Noyes v. Gold, 310 Ill.App. 1, 34 N.E.2d 1. True, the burden of connecting up these 'before and after' occurrences, as either contributing (before), or intervening (after) causes, devolved on defendant, but this is not shifting the burden of proof. To phrase it another way, because plaintiff did not have a duty to negate affirmatively as part of his case the causal relationship between these 'before and after' occurrences and the one he sued on, is not saying that plaintiff was relieved of the burden of demonstrating that his injuries were proximately caused by the occurrence of April 16. In like measure, the fact that plaintiff bore this burden successfully does not mean that it then shifted. It did not. The burden of proof is not cast on a defendant in giving him the right of defending himself against a prima facie case, if by burden of proof the defendant means that the plaintiff was relieved from establishing his case at the onset.
In Henderick v. Uptown Safe Deposit Company, 21 Ill.App.2d 515, 159 N.E.2d 58, 64, there is a quotation from Thayer's Preliminary Treatise on Evidence, 378, which neatly summarizes the situation:
'We see that the burden of going forward with the evidence may shift often from side to side; while the duty of establishing his proposition is always with the actor and never shifts.'
And as pointed out by Professor Edward W. Cleary, Handbook of Illinois Evidence (1956), the burden of proof actually has two aspects (page 70): . He further states: 'The burden of producing evidence may shift from party to party as the case progresses, but the burden of persuasion never shifts.'
Proximate cause was a part of plaintiff's case. It was as indispensable as the elements of defendant's negligence, plaintiff's freedom therefrom, and damage. Without it, plaintiff's action would have failed. But when he has borne the burden of proof and established the material elements necessary to make out a case, it is then the defendant's right, but certainly not his duty--to put on his defense. This is not shifting the burden of proof. One cannot be said to have a burden if one may pick it up or not as he pleases. Obviously if there is evidence negative of causation, a defendant should show it, but the law in according him the privilege of going forward in nowise shifts to him the burden of proof as the law knows that phrase. In Behnke v. President and Board of Trustees, 366 Ill. 516, 9 N.E.2d 232, 233, it is stated
Defendant argues that these 'before and after' occurrences should have been left in for consideration by the jury; 'that where there could be more than one cause of the damage it is the plaintiff's burden to prove which one caused it'; 'that where two causes could be the cause of the damage, plaintiff had the burden of proving which one caused it'; 'That defendant has the right to elicit, upon cross-examination, other possible causes, and upon eliciting such evidence to have all the evidence as to such causes submitted to the jury'. These would be correct statements of the law, were it not for the fact that the evidence elicited on this cross-examination does not establish even remotely, a possible 'cause' or 'causes' of plaintiff's injuries. No jury could reasonably infer from these incidents that one or both of them were related to the injuries plaintiff sued on. In short, as to both, there was no nexus. To elevate testimony that sometime before the rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before the onset of a more serious lower-back complaint, his front head-light was struck, to the status of contributing or intervening causes, suitable for submission to triers of the fact, is to misread standards of relevancy required as pre-conditions of admissibility. That this requirement devolves on the defendant to the same extent as on plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it. It is a question of relevancy, pure and simple.
Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by pleadings. (See 1 Wigmore on Evidence, 3d Ed., Sec. 2.) That intervening and contributory causes are material to the issue of proximate cause is implicit in the very nature of things, and taken as a matter of course in actions of this kind. They are material propositions that may be proved. The question here is whether the evidentiary facts offered by defendant did prove either one or both of them. Relevancy has been defined as a tendency to establish a fact in controversy, or to render a proposition in issue more or less probable. To be probable, evidence must be viewed in the light of logic, experience and accepted assumptions concerning human behavior. We think on all these counts, viewing the evidence as a whole, reading text in context, that the cross-examination failed to produce evidence that had a tendency to establish any fact which would render plaintiff's proof of proximate cause less probable.
Nor did the court's action invade the province of the jury, as defendant...
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... ... [190 Kan. 263] The Supreme Court of Illinois on March 23, 1962, in Caley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206, reversed the Appellate Division (Caley v. Manicke, 29 Ill.App.2d 323, 173 N.E.2d 209) holding the portions ... ...
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