Flewellen v. Atkins

• Decision Date: 24 September 1968
• Docket Number: Gen. No. 51482
• Citation: 241 N.E.2d 667,99 Ill.App.2d 409
• Parties: Clara FLEWELLEN, Plaintiff-Appellee, v. Max ATKINS et al., d/b/a State and Madison Property, a partnership, and United, Building Construction Co., a partnership, Defendants-Appellants. Max ATKINS et al., d/b/a State and Madison Property, a partnership, Third-Party Plaintiff-Appellee, v. UNITED BUILDING CONSTRUCTION CO., a partnership, Third-Party Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 667

241 N.E.2d 667

99 Ill.App.2d 409

Clara FLEWELLEN, Plaintiff-Appellee, v. Max ATKINS et al., d/b/a State and Madison Property, a

partnership, and United, Building Construction

Co., a partnership, Defendants-Appellants.

Max ATKINS et al., d/b/a State and Madison Property, a partnership, Third-Party Plaintiff-Appellee, v. UNITED BUILDING CONSTRUCTION CO., a partnership, Third-Party

Defendant-Appellant.

Gen. No. 51482.

Appellate Court of Illinois, First District, Second Division.

Sept. 24, 1968.

Meyers & Matthias, Bruce E. Pashley, Chicago, Jones & Clark, Vincent M. Clark, Chicago, of counsel, for defendant-appellant, United Building Construction Co.

Roger J. Boylan and Victor J. Cassato, Chicago, for Max Atkins, and others, defendant-appellant and third-party plaintiff-appellee.

George C. Rabens, S. Joseph Formusa, Chicago, for plaintiff-appellee.

ON REHEARING

LYONS, Justice.

The plaintiff, Clara Flewellen, joined the defendants, Max Atkins, Herman Atkins, Ben Atkins and Alvin Oken, d/b/a State & Madison Property Co., a copartnership (hereinafter referred to as State & Madison Property Co.) and United Building Construction Co., a copartnership, in her suit for personal injuries arising from alleged common law negligence. Thereafter, State & Madison Property Co., a copartnership, filed a third-party complaint against United Building Construction Co., a copartnership, alleging a right to idemnification arising from implied warranty doctrines or activepassive negligence rules. Pursuant to stipulation, the trial court severed the third-party complaint from the original cause of action, which was being tried by a jury. The jury returned a verdict in favor of the plaintiff, Clara Flewellen, and against all defendants, assessing the damages at $3,500.00 and costs. Judgment was entered upon this verdict.

As to the third-party action, both parties waived a jury. After considering the evidence, the trial court found for the third-party plaintiff, State & Madison Property Co., and against the third-party defendant, United Building Construction Co., in the amount of $3,500.00 and costs, entering judgment accordingly.

All defendants appeal from the judgment in favor of the plaintiff, Clara Flewellen, and against them in the amount of $3,500.00 and costs, and from the order of the trial court denying their post-trial motions for judgment notwithstanding the verdict and for a new trial. In addition, the third-party defendant, United Building Construction Co., appeals from the judgment rendered in favor of the third-party plaintiff, State & Madison Property Co., in the third-party action.

At the trial the plaintiff testified that the personal injury occurred on July 23, 1958, when she was on her way to work. She had left the Monroe Street subway station in downtown Chicago and was walking north, approaching the intersection of State and Madison Streets on the west side of State Street, when she was struck on the back of the head, left side, by some object. When so struck, she testified that she was approximately 15 to 20 feet from the southwest corner of State and Madison Streets. She fell to the ground and was assisted to her feet by an unidentified man who showed her the object which had hit her, a 2 2 piece of gray stone. Neither the stone nor the unidentified man was produced at the trial.

The plaintiff went on to mention that shortly after the accident she noticed it was 6:18 A.M. Testimony concerning compensatory damages concluded her statements on direct examination. The defendants stated that they had no questions of the plaintiff at this time, subject to her recall under Section 60 of Civil Practice Act. Whereupon, plaintiff's counsel said, 'The plaintiff rests her case, Your Honor.'

The defendants then entered motions for a directed verdict and plaintiff's counsel asked the court for leave to reopen for the purpose of additional proofs; i.e., answers by the defendants to written interrogatories propounded by the plaintiff. After returning from chambers, where opposing attorneys had presented oral arguments in support of their motions, the trial court refused to grant leave to the plaintiff to reopen her case and refused the defendants' motions for a directed verdict. Thereafter, the defendants offered no evidence but rather rested and renewed their motions for a directed verdict, which were refused. Closing arguments to the jury by all sides followed.

On appeal, the defendants contend: (1) the trial court erred in refusing to grant their motions for a directed verdict at the close of the plaintiff's case and again at the close of all the evidence; and (2) the trial court erred in refusing to grant their post-trial motions for a new trial due to prejudicial comments by the plaintiff's counsel in his closing argument to the jury.

The plaintiff's case rests solely upon circumstantial evidence. Her theory of liability is alleged to flow from these evidentiary facts: (1) she was struck on the back of the head by a piece of stone; (2) while walking on a public sidewalk approximately 15 to 20 feet from the intersection of State and Madison Streets; (3) the defendant construction partnership was repairing the roof of the defendant building manager partnership at the time of the occurrence, which property abutted the public sidewalk where the plaintiff was struck. Therefore, the defendants are guilty of concurrent negligence. The defendants argue that the plaintiff failed to prove her prima facie case because she never, in her testimony, mentioned them, thereby failing to show that her injury was proximately caused by their alleged acts of negligence. Hence, the trial court erred in failing to grant their motions for a directed verdict.

The standard to be applied by the trial court in evaluating the evidence so as to pass upon motions for directed verdicts has always been an elusive creature in the law. Recently, the Illinois Supreme Court in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513 (1967), recognized this problem and solved it by enunciating one standard for use in Illinois:

'* * * In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.'

Therefore, this court's duty is to determine if all the evidence, when viewed most favorably to the plaintiff, so overwhelmingly favors the defendants that no verdict for the plaintiff based on that evidence could ever stand. Since the defendants offered no evidence at the trial, only the plaintiff's evidence will be considered, along with remarks by counsel for the defendants.

It is true that the plaintiff never mentioned the defendants specifically, by name, in her testimony. However, the attorney for State & Madison Property Co., mentioned in his opening statement to the jury: 'We agree with what plaintiff's attorney has told you that work was going on there, but how the injury occurred we have no knowledge. We believe that the evidence will show that the State & Madison Property Co. had no control over the workmen or the employees of United Construction Company; they furnished the material, the men, and the necessary equipment.'

It was held in Petersen v. General Rug & Carpet Cleaners, Inc., 333 Ill.App. 47, 77 N.E.2d 58 (1947) that an attorney can make admissions in his opening statement which will be attributable to his client. In that case the plaintiff was walking across a busy Chicago intersection when two vehicles struck her. These vehicles were being driven by servants of corporate employers. The plaintiff joined both masters as defendants and sued on the basis of common law negligence. The attorney for one of the codefendants stated in his opening statement to the jury: 'I represent the General Rug & Carpet Cleaners, and they were the owners of the first of these two northbound trucks that plaintiff's counsel spoke about in his opening statement. * * * The driver of our truck has had a great many years of driving experience. It was a panel body truck as he tells me. It was a dark green truck.' Neither defendant introduced any evidence at the trial.

On appeal, the defendant argued the trial court had erred in refusing to direct a verdict in their favor as the plaintiff's evidence did not show that any vehicle belonging to the defendants was involved in the accident. Furthermore, the plaintiff's failure to prove one of the basic facts essential to a prima facie case was not cured by the remarks in the opening statement of defendant's counsel. In rejecting this contention the reviewing court in Petersen at page 57, 77 N.E.2d at page 63 stated:

'* * * We hold that counsel for defendant General Cleaners admitted, in definite and plain language, that it was the owner of the first of the two northbound vehicles that Mr. Ryan spoke about in his opening statement and that this admission was binding upon his client. * * * It is due Transportation Corporation to say that it does not seek to avoid the effect of the admission made by its counsel in the opening statement that the station wagon involved in the accident was being driven by its employee.'

Coming to the same conclusion is Drell v. American Nat. Bank and Trust Co., 57 Ill.App.2d 129, 207 N.E.2d 101 (1965). In the present case admissions were made by counsel for State & Madison Property Co., in his opening statement to the jury (i.e., 'work was going on there. * * *') and these admissions bound both his client and the other defendant, United Building Construction Co., as the defendant shared a joint interest in the outcome of the litigation. See McMillan et al. v. McDill et al., 110 Ill. 47 (1884); Miller v. Mathias, 145 Ill.App. 465 (1908); Lowe v. Huckins, 356 Ill. 360, 190 N.E. 683 (1934). United Building Construction Company did not...