Gillson v. Gulf, M. & O. R. Co.

• Decision Date: 27 March 1969
• Docket Number: No. 41461,41461
• Citation: Gillson v. Gulf, M. & O. R. Co., 246 N.E.2d 269, 42 Ill.2d 193 (Ill. 1969)
• Parties: William D. GILLSON, Admr., Appellee, v. The GULF, MOBILE AND OHIO RAILROAD CO., Appellant.
• Court: Illinois Supreme Court

Page 269

246 N.E.2d 269

42 Ill.2d 193

William D. GILLSON, Admr., Appellee, v. The GULF, MOBILE AND OHIO RAILROAD CO., Appellant.

No. 41461.

Supreme Court of Illinois.

March 27, 1969.

Gillespie, Burke & Gillespie, Springfield, John W. Hoefert, Alton, for appellant (Louis F. Gillespie, George B. Gillespie, and Robert E. Gillespie, Springfield, of counsel).

Hoagland, Maucker, Bernard & Almeter, Alton, for appellee (James K. Almeter, Alton, of counsel).

UNDERWOOD, Justice.

Plaintiff, William Gillson, as administrator of the estate of Bonnie Gillson who was killed in an auto-train collision, brought a wrongful death action against the Gulf, Mobile and Ohio Railroad Company, the engineer Edwin S. Parker, the fireman Thomas Butler, and the village of Hartford in the circuit court of Madison County. A jury returned a verdict against the railroad (hereinafter, defendant) in the amount of $28,000 and found the issues in favor of the other three defendants. The defendant appealed to the Fifth District Appellate Court which affirmed. (94 Ill.App.2d 170, 236 N.E.2d 113.) We granted leave to appeal.

The accident involving the automobile, in which decedent was riding as a passenger, and the defendant's train occurred at approximately 9:30 P.M. on January 21, 1965, at the Rand Avenue crossing in Hartford, Illinois.

Although there were other contentions urged before the appellate court, defendant appeals here on the sole ground, all others being waived in oral argument, that the court erred in permitting plaintiff's counsel in opening statement, over repeated objections, to refer to, discuss, and read from 5 documents, 4 of which when offered into evidence were held to be inadmissible, and the offer of the 5th withdrawn. Defendant argues that plaintiff's counsel knew the documents to be inadmissible, and that his references to them were made in bad faith and for the purpose of improperly acquainting the jury with matters prejudicial to defendant. Plaintiff contends the documents were admissible, and the trial court erred in excluding them, and that, in any event, plaintiff was not prejudiced by their admission or the opening statements complained of.

The portions of the opening statement relevant to our opinion read as follows:

'MR. ALMETER: On July 13, 1937, I think the evidence will show, Mr. Otto Schlieper, who was then Superintendent of the Street and Alley Committee of Hartford, wrote a letter to the Gulf, Mobile & Ohio and advised that in his opinion, that is in his official opinion as the Streets and City's Commissioner of Hartford, that in his opinion this crossing was hazardous and needed warning lights.

I anticipate the evidence to show on July 3, 1950, the Chief Engineer of the Illinois Commerce Commission addressed correspondence to the New York Central, to the G M & O, and to the Village of Hartford saying they had received complaints that this crossing was dangerous--

MR. HOEFERT: I make one more objection and ask that it be considered by the Court as a continuing objection to this line of argument.

THE COURT: Overruled. And the continuing objection to counsel's argument will be shown for the record.

MR. ALMETER: I expect the evidence to show that on July 21, 1950, after the Illinois Commerce Commission wrote them, I expect the evidence to show that there was a meeting between the New York Central, the Gulf, Mobile & Ohio people, someone from the Illinois Commerce Commission, and from the Village of Hartford. In that meeting, it was agreed that warning signals should be put up. And it was suggested to the Mayor, who was the representative of the Village of Hartford, that the Mayor go to the Council and put, and that Hartford put up warning signals. And that the railroads would thereafter maintain them. Nothing was done.

I anticipate the evidence will show that on January 28, 1965, that is three days, four days--Well, six days after the accident, or seven, but the Village Council of Hartford passed a resolution, an official act of the Village in Council on which, I believe the evidence will show, there was unanimous--

MR. COPPINGER: I object to this as being subsequent to the incident in question.

MR. ALMETER: I haven't finished yet, Your Honor.

THE COURT: Objection will be noted.

MR. ALMETER: * * *

And I expect the evidence to show that the only reason that adequate warning signs, and adequate warning system has not been put here is that these railroads and this village could not get together on who should pay for it. And they have been all fighting about money. And, as a result, nobody did anything.

I anticipate the evidence will show that what these parties saved in money, these girls paid for with their lives.' (Emphasis supplied.)

In order to accurately appraise these comments, it is significant to note that following the selection of the jury and prior to the opening statement a discussion of the admissibility of these documents had apparently been held by the court and counsel. This, in our opinion, is the fair import of the trial judge's comment made in connection with the defendant's motion for a mistrial at the conclusion of the opening statements: 'THE COURT: The Court is highly concerned about opening statements of plaintiff's counsel, especially after the conference between Court and counsel yesterday after the selection of the jury when this whole matter was discussed between the Court and counsel for the parties. The Court will reserve its ruling on the Motion for Mistrial at this time.' It is also pertinent to note that in the course of the hearing outside the presence of the jury on the objections of defendant to plaintiff's exhibits, plaintiff's counsel vigorously argued his right to make his offers of evidence and have defendant's objections thereto made in the presence of the jury.

The opening statement is intended generally to inform the jurors concerning the nature of the action and the issues involved nad to give them an outline of the case so that they can better understand the testimony. (People v. Hamilton, 268 Ill. 390, 391, 396, 109 N.E. 329; Pietsch v. Pietsch, 245 Ill. 454, 457, 92 N.E. 325, 29 L.R.A.,N.S., 218.) Counsel may summarily outline what he expects the evidence admissible at the trial will show (53 Am.Jur. Trial, par. 454; 88 C.J.S. Trial § 161), but no statement may be made in opening which counsel does not intend to prove or cannot prove. Colmar v. Greater Niles Township Publishing Corp., 13 Ill.App.2d 267, 274, 141 N.E.2d 652.

Plaintiff argues that one of the documents, apparently a copy of a letter by the railroad's employee to his superior, is admissible as an admission by a party opponent. Although statements made out of court by a party-opponent are admissible against him (IV Wigmore, Evidence, 3d ed., par. 1048) plaintiff seems to ignore the additional requirement that admissions must nevertheless be Relevant to trial issues. (Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 115, 199 N.E.2d 769; Maltby v. Chicago Great Western Railway Co., 347 Ill.App. 441, 106 N.E.2d 879.) The contents of the letter in question related to a meeting of public and railroad officials where apparently the question discussed was: If an automatic warning device is to be placed at the Rand Avenue crossing, who should pay for its installation? No part of the letter could be considered as an admission by the railroad that the crossing was in fact dangerous, or that it had a duty to erect such a device. We agree with the appellate court that the document was not relevant and was therefore properly excluded. Presumably, this letter was the basis for counsel's opening statement comment: 'In the meeting, it was agreed that warning signals should be put up.' It is clear that the letter contains no statement or agreement by defendant that signals should be put...