Cohen v. CHECKER TAXI COMPANY, 11103.

• Decision Date: 12 January 1955
• Docket Number: No. 11103.,11103.
• Citation: 217 F.2d 449
• Parties: Samuel COHEN v. CHECKER TAXI COMPANY.
• Court: U.S. Court of Appeals — Seventh Circuit

217 F.2d 449 (1954)

Samuel COHEN v. CHECKER TAXI COMPANY.

No. 11103.

United States Court of Appeals Seventh Circuit.

December 2, 1954.

Rehearing Denied January 12, 1955.

Harold A. Liebenson, Chicago, Ill., Director & Liebenson, Chicago, Ill., for plaintiff-appellant, Harry J. Director, Sheldon Deutsch, Chicago, Ill., of counsel, for appellant.

Julius Jesmer, Chicago, Ill., Chester L. Harris, Chicago, Ill., for defendant-appellee.

Before MAJOR and SWAIM, Circuit Judges, and PLATT, District Judge.

MAJOR, Circuit Judge.

Plaintiff allegedly was struck by a taxicab operated by defendant's driver at the intersection of Kedzie Avenue and Fillmore Street in Chicago, Illinois, on April 22, 1953. This action was brought to recover damages for personal injuries thereby sustained. A trial was had to a jury which returned a verdict adverse to plaintiff. From a judgment entered in accordance with such verdict, plaintiff appeals.

The primary issues, as is usual in such cases, related to defendant's negligence, plaintiff's contributory negligence and, in the event those issues were decided favorably to plaintiff, the measure of damages, if any, occasioned as a result of the accident. Defendant, in an attempt to sustain the jury verdict and the court's judgment, argues, as it did below, that plaintiff was not struck by defendant's cab as alleged, that plaintiff is an impostor and that his claim asserted against the defendant is fraudulent.

Obviously, the question as to whether plaintiff was struck by defendant's cab as alleged and, if so, the issues of negligence and contributory negligence, were matters for the consideration of and decision by the jury, providing there was any evidence, considered in the light most favorable to plaintiff, which would justify their submission. The trial court evidently thought there was such proof, as is evidenced by the fact that the case was submitted to the jury. A study of the record is convincing that the proof presented a typical jury case, notwithstanding certain inconsistencies, discrepancies and suspicious circumstances. Thus, the verdict of the jury is controlling, providing the case was tried and submitted without prejudicial error.

Many errors claimed to have been prejudicial are assigned, the most important of which relates to the cross-examination of plaintiff by defendant's counsel. As a prelude to a discussion of this matter and for that purpose only, a brief statement of the facts appears appropriate.

Plaintiff at the time of the alleged accident was 24 years of age and was a cripple, having been stricken with polio in early youth. About six weeks prior to the accident he had been employed by United Air Lines as a telephone reservation clerk at a salary of $45 per week. As a result of the injuries sustained, he was unable to return to his employment, which condition still existed at the time of the trial. Plaintiff's proof relative to damages included an item of $1,530 for loss of wages or compensation, presumably which he would have received in the absence of the accident, from the United Air Lines for the period intervening between the accident and the trial ($45 per week for 34 weeks).

United Air Lines required plaintiff, as it did all prospective employees, to execute an application and also to furnish a performance bond, which requirements were met by the plaintiff. The company which furnished the bond also required an application executed by the plaintiff. The application which plaintiff filed with United Air Lines, as well as that given to the bonding company, contained a number of questions which plaintiff answered in his own handwriting, falsely, so it is claimed; in fact, the falsity of some of the answers is not disputed.

Referring to the applications thus executed by plaintiff, defendant's counsel, on cross-examination of plaintiff, asked a number of questions which plaintiff under the rulings of the court was required to answer. This cross-examination was permitted over strenuous objections by plaintiff. It is here contended that these rulings were erroneous and that this cross-examination was improper and prejudicial. With this contention we agree. The important portions of this cross-examination (conducted by Mr. Jesmer, attorney for the defendant) in question and answer form are as follows:

"Q. Now in response to this question, Mr. Cohen, `Since your sixteenth birthday, excluding minor traffic violations, have you ever been arrested, indicted or summoned into court as a defendant in a criminal proceeding or convicted, fined or imprisoned or placed on probation, or have you ever done time for the violation of any law, regulation or ordinance?\' In response to that question did you answer `No\'? A. Yes, sir.

* * * * * *

"Q. In this same application for a bond, for a fidelity bond, was this question asked of you and did you answer `No\'? The question: `Have you ever been arrested, summoned or punished in a court?\' A. Yes, sir.

"Q. And were you asked this question in your application for a bond: `Has there been any unfavorable instance in the past during which your honesty might be questioned?\' And the answer was `No\'?

"Q. Did you make that answer to that question? A. Yes, sir.

* * * * * *

"Q. Were you arrested in 1949 on some charges of passing bad checks? A. Yes.

"Q. And then in December of 1949 weren\'t you arrested in connection with some things that occurred in three hotels here in Chicago? A. Yes, sir.

"Q. Before you made this application were you ever arrested in Houston, Texas? A. Yes, sir.

"Q. On what charge? A. Nothing.

"Q. You had a gun with you at the time, didn\'t you? A. No, sir.

* * * * * *

"Q. Now, one of those questions was this: `Have you ever had or have you now — check yes or no — a mental upset?\' And you answered `No\', is that right? A. Yes.

"Q. And then another question: `Ulcers of the stomach or intestines?\' And you answered `No\' to that one. A. Yes, sir."

As noted, this line of cross-examination was appropriately objected to by the plaintiff at...