Marek v. Stepkowski

Decision Date22 December 1992
Docket NumberNo. 1-91-3336,1-91-3336
Citation241 Ill.App.3d 862,608 N.E.2d 285,181 Ill.Dec. 212
Parties, 181 Ill.Dec. 212 Aleksander MAREK, Plaintiff-Appellee, v. Michal STEPKOWSKI and Josef Stepkowski, Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Nicholas F. Maniscalco, Chicago, for defendants-appellants.

Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd., Summit (William H. Hrabak, Jr., of counsel), for plaintiff-appellee.

Justice McCORMICK delivered the opinion of the court:

Defendants, Michal and Josef Stepkowski, appeal from judgment entered on a jury verdict finding defendants liable to plaintiff, Aleksander Marek, for $150,000 in damages because they beat plaintiff up outside a bar.

We find that the trial court did not commit reversible error by disallowing defense counsel's questions concerning defendants' attorney's advice and restitution awarded in a related criminal case. The trial court did not abuse its discretion by allowing plaintiff's counsel to argue that one defendant's unexplained absence from court showed that he did not care about the lawsuit. The trial court did not err when it refused four of the five instructions defendants offered. Defendants waived objection to the form of the verdict. The trial court properly construed the verdict when it ignored an attempted allocation of damages as surplusage. The amount of the judgment is not clearly excessive. Therefore we affirm the trial court's judgment.

Plaintiff sued the defendants for wilful and malicious battery. Defendants filed an answer denying essentially all allegations of the amended complaint and pleading assumption of the risk as an affirmative defense. Plaintiff served notice on defendants' attorney, pursuant to Supreme Court Rule 237 (134 Ill.2d R. 237), requiring defendants to appear at trial for plaintiff to examine them. Neither Michal nor Josef appeared on the first day of trial, and only Josef appeared on the second day. Most of the parties and witnesses spoke only Polish, so the court conducted much of the trial through interpreters.

Plaintiff testified that he had never seen defendants before August 31, 1985, when he went to a bar with Ada True. He noticed defendants staring at them during the evening. When he and True tried to leave the bar, defendants stood in their way. Plaintiff said "excuse me" and one of the defendants said "I am going to show you excuse me." He pushed plaintiff against a cigarette machine, and plaintiff fell to the floor. Plaintiff and True left, but defendants left the bar close behind them and followed them to plaintiff's car. One of the defendants hit plaintiff's head with a hard object and plaintiff fell. He did not hit either defendant and he had no chance to defend himself. He lost consciousness while defendants kicked him. He woke up for a moment after police arrived and again in the police wagon on the way to the hospital emergency room. When police gave him his wallet, he discovered that $150 he was carrying before the beating was gone. He paid medical bills totalling $9682.10 for care of his injuries. He lost 53 days of work, for which he would have been paid $75 per day.

The parties stipulated that defendants pled guilty to aggravated battery of plaintiff in criminal court, and that court sentenced them for the offenses. The criminal court's judgment is not included in the record on appeal.

True substantially corroborated plaintiff's testimony. She added to plaintiff's account more words exchanged between the parties: after plaintiff said "excuse me" and defendants pushed him down, plaintiff asked "for what you need this problem?" Defendants threatened to "beat [plaintiff's] face." While she and plaintiff were running to the car, plaintiff said to defendants something like "go back to restaurant, don't play hero." She also said that she drove plaintiff's car out of the lot while defendants were beating him, and she got help from passersby who chased defendants away. True tried to stop the bleeding from plaintiff's face and then she ran back to the bar to phone the police.

Defendant Josef Stepkowski testified that while he was sitting at the bar plaintiff touched him while passing behind him. Josef told plaintiff "you better go to sleep, you had a drink." Plaintiff answered, "if you are so strong so let's go outside." Defendants followed plaintiff out of the bar. Plaintiff hit Josef and Josef hit him back "[m]aybe once, twice." Michal tried to break up the fight. Josef did not see him hit plaintiff. Josef testified that Michal went to Poland a few days before trial. He offered no explanation for Michal's decision to leave the country. Josef admitted that he would not have come to court if plaintiff's attorney had not subpoenaed him.

Defense counsel asked Josef:

"[Y]ou pled guilty in criminal court, you did that on your attorney's advice?"

The court sustained plaintiff's objection, finding the question irrelevant. Counsel next asked:

"[D]id you pay [plaintiff] any money as restitution?"

The court again sustained plaintiff's relevance objection. When counsel began the next question: "Have you already compensated-," the trial court instructed him to "[g]o on[ ] to something else."

In closing argument plaintiff's counsel said:

"Jose[f] Stepkowski came in just today to be a witness for another attorney.

Micha[ ]l Stepkowski is apparently in Poland * * *. It's obvious these people don't even care about being defendants in a lawsuit."

The court overruled defendants' objection. Counsel proceeded:

"They don't even care. They don't care what they did to [plaintiff] and I think because of that you must award some damages to punish them and to get their attention and tell them that this is * * * outrageous."

Plaintiff requested more than $80,000 in compensatory damages and $150,000 in punitive damages.

Defendants tendered five instructions. Defendants based instructions 1 and 2 on the theory that plaintiff assumed the risk of injury by engaging defendants in a fight, and that assumption of the risk was an absolute defense, which, if proved, deprived plaintiff of all right to recovery. The trial court refused the instructions because they misstated the law. The trial court gave defendants' instruction 3, which states that if plaintiff assumed the risk of injury, "the total amount of damages to which he would otherwise be entitled * * * is reduced in proportion to the amount of his fault in assuming the risk." Defendants based instructions 4 and 5 on the theory that plaintiff was guilty of contributory wilful and wanton misconduct. The trial court refused the instructions because defendants, in their answer, did not allege contributory wilful and wanton misconduct.

To make a record on the instructions, defense counsel stated that instructions 1 and 2 should have been given because assumption of risk was a complete defense when this battery occurred. He did not seek leave to file an amended answer, and he did not present an amendment to match his proposed instructions 4 and 5 to the court. Defendants did not object to the verdict forms plaintiff submitted, although the forms did not require the jury to distinguish economic from non-economic damages. Defendants offered no verdict forms.

The jury found for plaintiff, assessing damages of $150,000, but under the line for the damage assessment, the jury added, "(Divided by both brothers $75,000.00.)" The court entered judgment against both defendants for $150,000.

Defendants contend that the trial court prevented them from explaining why they pled guilty to aggravated battery. The only effort defendants made to explain their guilty pleas came in Josef's testimony, when his counsel asked whether his attorney advised him to plead guilty. Defendants do not explain the relevance of counsel's advice. All the response sought would have shown, apparently, is that, because "the defendant had the additional safeguard of representation by counsel, * * * the likelihood of an unjust conviction has been minimized and the defendant's conviction is reliable evidence of the fact that he did in truth commit a battery." (Thornton v. Paul (1978), 74 Ill.2d 132, 150, 23 Ill.Dec. 541, 384 N.E.2d 335.) Defendants suffered no prejudice from exclusion of this evidence. In this case, as in Galvan v. Torres (1956), 8 Ill.App.2d 227, 233, 131 N.E.2d 367, counsel did not ask defendant why he pled guilty. Exclusion of evidence of his attorney's advice was not error.

Defendants claim that the trial court should have permitted them to introduce evidence of the amount of restitution they paid plaintiff as part of their sentence for aggravated battery. Where amounts a defendant has paid a plaintiff as compensation for injuries may be deducted from the total damages sustained, "the function of the jury [is] to find the plaintiff's total damages, and the function of the judge, upon application of the defendant after verdict, [is] to find the amount by which such verdict should be reduced." (De Lude v. Rimek (1953), 351 Ill.App. 466, 474, 115 N.E.2d 561.) The trial court correctly determined that evidence of restitution was irrelevant to the question for the jury, and thus it properly excluded the evidence. See Webb v. Toncray (1981), 102 Ill.App.3d 78, 83, 57 Ill.Dec. 757, 429 N.E.2d 874; Burger v. Van Severen (1963), 39 Ill.App.2d 205, 214-15, 188 N.E.2d 373.

In their reply brief defendants ask this court to reduce the damage award by restitution paid. As plaintiff points out, defendants never sought this relief at trial, and defendants never even submitted evidence to the trial court that they paid restitution, or if they did, what amount they paid. Accordingly, this issue is not preserved for review. See Pecora v. Szabo (1981), 94 Ill.App.3d 57, 49 Ill.Dec. 577, 418 N.E.2d 431.

Defendants contend that the judgment must be vacated because of comments plaintiff's counsel made in closing...

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