McCann v. Lisle-Woodridge Fire Protection Dist., LISLE-WOODRIDGE

• Decision Date: 21 June 1983
• Docket Number: No. 82-551,LISLE-WOODRIDGE,82-551
• Citation: 115 Ill.App.3d 702,450 N.E.2d 1311,71 Ill.Dec. 432
• Parties: , 71 Ill.Dec. 432 Dolores L. McCANN, Plaintiff-Appellee, v.FIRE PROTECTION DISTRICT, a local public entity, Defendant- Appellant.
• Court: United States Appellate Court of Illinois

Page 1311

450 N.E.2d 1311 115 Ill.App.3d 702, 71 Ill.Dec. 432 Dolores L. McCANN, Plaintiff-Appellee,
v.
LISLE-WOODRIDGE FIRE PROTECTION DISTRICT, a local public
entity, Defendant- Appellant. No. 82-551. Appellate Court of Illinois,
Second District. June 21, 1983.

[115 Ill.App.3d 703]

Page 1312

[71 Ill.Dec. 433] Judge, Kurnik & Knight, Ltd., Kristine A. Karlin, Jay S. Judge, James S. Stephenson, Park Ridge, for defendant-appellant.

A. Mark Ialongo, Fred Lambruschi, Chicago, for plaintiff-appellee.

VAN DEUSEN, Justice:

Plaintiff, Dolores L. McCann, was involved in an automobile collision and brought suit for personal injuries against two other drivers, defendant David A. Rainford and defendant James J. Filliung and [115 Ill.App.3d 704] also against defendant Lisle-Woodridge Fire District (District) a local public entity, on the grounds that Filliung at the time and place in question was acting as agent and servant and in the course of his employment for the District. Negligence was charged against each defendant. The jury returned a verdict in favor of Rainford and in favor of plaintiff against defendants Filliung and Lisle-Woodridge Fire Protection District in the amount of $169,097. Only the District has brought this appeal.

Briefly stated, the collision occurred at a "T" intersection of Maple Avenue and Elm Street in Lisle, Illinois. Defendant Filliung, a volunteer fireman for defendant Lisle-Woodridge Fire Protection District, was responding to a call for his services and pulled around the left side of plaintiff's vehicle, which was stopped at a stop sign on Elm Street facing north at its intersection with Maple Avenue, and into the path of the Rainford vehicle, which was proceeding eastbound on Maple Avenue. Rainford applied his brakes, they locked, and his vehicle skidded until the left front fender struck the driver's door of plaintiff's vehicle.

On appeal, defendant first contends that the trial court should have awarded a new trial in this cause because plaintiff failed to comply with discovery procedures by failing to disclose the existence of certain

Page 1313

[71 Ill.Dec. 434] photographs of plaintiff's vehicle and that such noncompliance was substantial and in bad faith. (E.g., Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill.App.3d 435, 443, 333 N.E.2d 716.) We do not disagree with the principles and supporting authorities regarding discovery and the purpose of full and complete discovery suggested by defendant, but, from our examination of the record, we conclude that there was no intentional or wilful conduct on the part of the plaintiff to hide or a failure to disclose the photographs in question.

On the contrary, a review of plaintiff's response to defendant's interrogatories concerning the photographs of the scene, person or vehicles involved in possession of plaintiff reveals that it is, as the result of typographical errors, unintelligible and meaningless. Defendant could have and should have sought clarification of this response well in advance of trial. Further, the record discloses that one of the attorneys representing the District did voir dire the plaintiff concerning the photographs in question and was given an opportunity to examine her concerning them and that, on motion of said attorney, the photographs were admitted into evidence. Thus, the photographs were available to the District's counsel in his closing argument, referred to several times in that argument, and were available to the jury for examination. In sum, plaintiff's typographical errors in her response to [115 Ill.App.3d 705] interrogatories did not constitute a violation of discovery procedures, and the trial court properly denied a new trial on the basis of this alleged discovery violation.

Defendant next maintains that a review of the record shows an oral agreement existed between plaintiff and defendant Rainford which undermined the integrity of the adversary nature of the judicial process. However, both counsel for plaintiff and for defendant Rainford, who were officers of the court, assured the court in no uncertain terms that there were no agreements. Considering the total circumstances shown by the evidence in this case, the conduct of counsel for plaintiff and counsel for defendant Rainford does not lead to the single inference that an agreement existed between plaintiff and defendant Rainford as contended by the defendant District. Therefore, a finding that no agreement existed would not be against the manifest weight of the evidence. The trial court did not abuse its discretion in failing to award defendant District a new trial on this ground.

Next the defendant contends that the trial court erred in excluding evidence regarding the effect of taxation on plaintiff's lost wages. Specifically, the court sustained an objection to defendant's attempts to elicit testimony as to plaintiff's net lost wages. Defendant contends that this evidence should have been admitted.

Defendant argues on appeal, as it did in its post-trial motion, that Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689, a wrongful death action brought under the Federal Employers Liability Act (FELA) (45 U.S.C. sec. 51 et seq. (1976)) is applicable and supports the conclusion that evidence of the effect of taxation is admissible. Specifically, defendant points to language of the Supreme Court that the FELA is compensation oriented and that "a wage earners' income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies." (444 U.S. 490, 493-94, 100 S.Ct. 755, 757, 62 L.Ed.2d 689, 694.) The narrow issue before us is whether Liepelt should be applied to a non-FELA case, specifically a State...