Foerster v. Illinois Bell Tel. Co.

• Decision Date: 26 June 1974
• Docket Number: No. 58781,58781
• Citation: 315 N.E.2d 63,20 Ill.App.3d 656
• Parties: Florence FOERSTER, Plaintiff-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 63

315 N.E.2d 63

20 Ill.App.3d 656

Florence FOERSTER, Plaintiff-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellant.

No. 58781.

Appellate Court of Illinois, First District, Fourth Division.

June 26, 1974.

L. Bow Pritchett, Edward Butts, Richard G. Siegel, Chicago, for defendant-appellant.

Robert F. Meersman, Mt. Prospect, for plaintiff-appellee.

ADESKO, Presiding Justice:

The appeal in this case arises out of injuries sustained by the plaintiff-appellee in an accident that occurred at her place of employment, The Real Estate News Co., on May 4, 1966. In a jury trial a verdict was returned against the defendant and the jury found that the defendant's negligence was the proximate cause of the plaintiff's injuries. The defendant contends that numerous errors occurred during the course of the trial and that the cumulatve effect of these alleged errors was to deprive it of a fair trial. It is maintained by the defendant that the trial court erred in forcing it to present its proof out of turn so that the plaintiff's medical expert could testify when he found it convenient. The defendant also contends that the trial court erred in sua sponte interrupting defense counsel's closing argument and in refusing to give the jury certain instructions that were tendered by defendant. A final contention of the defendant is that the trial court erred in what defendant characterizes as closely monitoring and interrupting witnesses testifying for the defense. We find no merit in these contentions.

The plaintiff arrived at work on May 4, 1966 at approximately 9:00 a.m. and commenced her duties as a telephone solicitor for the Real Estate News Co. In one of the calls made by the plaintiff the recipient stated that he had subscribed to the magazine published by Real Estate News and inquired if the company had received his check. The plaintiff did not have this information and said that she would have to verify it with a co-employee by the name of Tina. At approximately 10:30 or 11:00 a.m. the plaintiff left her desk and walked into the reception area where Tina's desk was located. At this time plaintiff noticed two men from the Illinois Bell Telephone Co. working behind Tina's desk.

The plaintiff testified that she walked about fifteen feet from the entrance of the reception room to Tina's desk and that the reception room was well lighted. She was not carrying anything and did not have any trouble seeing what was ahead of her. She stated that there was nothing foreign on the reception room floor when she arrived at work in the morning and that she did not notice any cables as she walked into the room. After the plaintiff received the information she desired from Tina, she turned to walk way away from Tina's desk. Plaintiff stated that telephone cables were wrapped around her foot and that she was thrown approximately ten to fifteen feet across the room. She did not fall but at this time Tina hollered 'My God' and the plaintiff turned and her shoulder hit a wall. The plaintiff testified that after she got her foot free from the wires she walked back to Tina's desk and picked up a telephone that had fallen off the desk. Plaintiff then walked back to her desk and tried to compose herself. She stated that it took about an hour before she could begin working again but that she worked the remainder of the day.

The reception room walls were described by the plaintiff as beige in color and the floor was also beige. The telephone cables were beige and Tina's desk was grey. The plaintiff stated that after she tripped she noticed that large telephone cables were on the floor by Tina's desk. She described them as being one half to two inches thick and that they were hooked up to the telephone on Tina's desk. She stated that it looked as if there were 1000 feet of cable on the floor.

The plaintiff sustained injuries to her left shoulder and right ankle and left her job on June 3, 1966 to receive medical attention. She was treated by various doctors and incurred various medical expenses. Plaintiff did not begin working again until October of 1967.

The defendant called as a witness Phillip Buckingham who was a private branch exchange installer for the defendant. Mr. Buckingham testified that he had fourteen years experience as a P.B.X. installer and that in early May of 1966 he was at the Real Estate News Co. office installing a call director. He stated that the cable utilized for such an installation was approximately as thick as his thumb and that it was either beige or grey in color depending upon what color the subscriber selected. Buckingham testified that he was working in the area of the reception room desk but that no cable for the job was stored in the reception area. Buckingham identified certain photographs of the reception room at Real Estate News and stated there was a typewriter, a clock, and a fan on the reception desk. The photograph also depicted an adding machine or comptometer on the desk but Buckingham could not recall if this machine was on the desk on the date in question. He was shown a piece of outside cable or inside building cable by defendant's attorney and stated that he did not use any of this type cable as a P.B.X. installer. Upon cross-examination Buckingham stated that he was installing about forty-five or fifty feet of cable to the call director. He did state that he observed an accident during the time he was at the Real Estate News office.

The defendant contends the trial court abused its discretion in forcing it to put on its proof out of turn so that the plaintiff's medical expert could testify when he found it convenient. The trial in the instant controversy began on a Thursday and concluded on the following Monday. On Friday, the second day of trial, the trial court stated that it had been informed by counsel for the plaintiff that he could not go forward with his medical testimony at that time and the trial court ruled it would proceed with the medical testimony on Monday at 9:30 a.m. The court stated:

'I am going to permit, over the objection of counsel for the defendants, for him to conclude his case on the question of liability, and request counsel for the defendant to proceed with this case on the question of liability and grant plaintiff's counsel leave to conclude his case on any medical matters on Monday morning, and also permit counsel for the defendant, if he has any rebuttal or conflicting medical testimony, to put on his medical testimony Monday morning. This is over the objection of counsel.'

The defendant maintains that the trial court erred because its ruling was tantamount to ordering a split issue trial and because the plaintiff failed to show due diligence and due cause.

A split issue trial is one in which evidence on the issue of liability is heard and then the trier of fact renders a decision on that question. If there is a finding of no liability the trial terminates. However, if liability is found then either the same or another jury hears evidence on the question of damages and a verdict is rendered on that question. It was held in Mason v. Dunn, 6 Ill.App.3d 448, 285 N.E.2d 191, 1972, that a trial court does not have the inherent authority to sever the issues of liability and damages in a single action. The trial court's ruling in the case at bar, which allowed the plaintiff to produce her medical testimony after the defendant presented its evidence on the liability issue did not constitute ordering a split issue trial. All of the evidence was heard before the jury retired to deliberate the issues of liability and damages. There was not a separate verdict as to liability and then a consideration of the damages issue. Therefore, this was not an impermissible split issue trial.

A trial court has a great deal of discretion in regards to controlling the order in which evidence is produced. As stated in McGlaughlin v. Pickerel, 381 Ill. 574, at 583, 46 N.E.2d 368, at 373, 1943:

'The order of the introduction of evidence rests in the sound discretion of the trial court and the exercise of it will not be interfered with except for clear abuse.' (Citations omitted.)

And as stated by Wigmore:

'It is obvious that, while a usual order for introducing topics of evidence and witnesses is a desirable thing, a variation from that order, which is often equally desirable, will not necessarily cause direct harm; it can do so only where it tends to confuse the jury, or where it misleads the opponent or finds him unprepared to meet it.' (VI Wigmore on Evidence, § 1867.)

There is no indication in the case at bar that the jury was confused or that the defendant was misled or unprepared to meet the trial court's ruling which varied the normal order for presenting the evidence. Defendant maintains it would have been more appropriate for the trial court to recess until after the plaintiff was able to produce her medical expert. However, as stated in Chwala v. Herbert, 138 Ill.App. 371 at 372, 1908, 'The conduct of trials as to permitting delay must necessarily be left to the sound discretion of trial courts. Brewer v. N.U. Bldg. Ass'n, 166 Ill. 221 (46 N.E. 752). It is also important to note that the trial court in making its ruling did state that the defendant would be allowed to introduce any conflicting medical evidence it had after the plaintiff's medical expert testified. We are of the opinion that the trial court did not abuse its discretion in changing the normal order of proof and there was no prejudice to the defendant by the ruling.

The defendant's next contention is that the trial court erred in sua sponte interrupting its defense counsel's closing argument and in sustaining objections to it by the plaintiff. Before considering each specific instance of alleged impropriety, it is first necessary to reiterate certain well established principles of law concerning closing arguments. 'The purpose of a closing argument is to assist the jury in arriving at...