Robinson v. Greeley and Hansen

• Decision Date: 11 May 1983
• Docket Number: No. 82-435,82-435
• Citation: 114 Ill.App.3d 720,449 N.E.2d 250,70 Ill.Dec. 376
• Parties: , 70 Ill.Dec. 376 David R. ROBINSON, Plaintiff-Appellee, v. GREELEY AND HANSEN, a partnership, Defendant, Counterplaintiff-Appellant, v. E & D ROBINSON CONSTRUCTION, INC., a corporation, Counterdefendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 250

449 N.E.2d 250

114 Ill.App.3d 720, 70 Ill.Dec. 376

David R. ROBINSON, Plaintiff-Appellee, v. GREELEY AND HANSEN, a partnership, Defendant, Counterplaintiff-Appellant, v. E & D ROBINSON CONSTRUCTION, INC., a corporation,

Counterdefendant-Appellee.

No. 82-435.

Appellate Court of Illinois Second District.

May 11, 1983.

Snyder, Clarke, Dalziel & Johnson, Julian Johnson, Waukegan, for defendant, counterplaintiff-appellant.

Donald T. Morrison & Assoc., Waukegan, for plaintiff-appellee; Paul S. Chervin, Ltd., Waukegan, for counterdefendant-appellee.

HOPF, Justice:

This case is before us for the second time.

The plaintiff, David R. Robinson, brought this action under the Structural Work Act (Ill.Rev.Stat.1973, ch. 48, par. 60 et seq.), against defendant, Greeley and Hansen (Greeley), a partnership, to recover damages for injuries (including brain damage) sustained by plaintiff on March 30, 1973, when he fell from an iron ladder affixed to the wall of a concrete sewer lift station being constructed for the North Shore Sanitary District (District). Defendant, which was the engineering firm employed by the District to design the system and supervise its construction, brought a third-party action for indemnity against plaintiff's employer, E & D Robinson Construction, Inc., (E & D), the general contractor for this project. The first trial resulted in a jury verdict and judgment in favor of the plaintiff in the amount of $325,000. However, we reversed the judgment and remanded for a new trial on the ground that plaintiff failed to plead and prove defendant was "in charge of the work," as required by the Act. (Ill.Rev.Stat.1973, ch. 48, par. 69; Robinson v. Greeley & Hansen (1980), 86 Ill.App.3d 1082, 42 Ill.Dec. 145, 408 N.E.2d 723.) This defect was cured upon remand and, after a new trial by jury, judgment was again entered in favor of the plaintiff in the principal action, this time in the amount of $750,000. In the third-party action the jury found in favor of third-party defendant E & D as to Greeley's claim for indemnity, finding that Greeley was in charge of the work and was not free from major fault. Greeley appeals from both judgments.

Greeley first contends the trial court erred when it refused to allow defendant to inform the jury that plaintiff had a remedy against his employer, E & D, under the Workmen's Compensation Act. (Ill.Rev.Stat.1973, ch. 48, par. 138.1, et seq.) Defendant claims the jury's lack of knowledge on this point resulted in an improper inference that plaintiff's only opportunity for compensation was against defendant. Greeley further maintains such an inference was exploited by plaintiff's counsel's argument to the jury that plaintiff "only [has] one chance for the compensation for the rest of his 39 years of life expectancy."

It is generally held that direct or indirect references to Industrial Commission proceedings in the trial of third-party actions are improper and should be excluded. (Principato v. Rudd (1981), 102 Ill.App.3d 362, 366, 58 Ill.Dec. 121, 430 N.E.2d 63; Chamness v. Odum (1979), 80 Ill.App.3d 98, 100, 35 Ill.Dec. 404, 399 N.E.2d 238.) This is especially true with respect to references regarding the amount of payments made by the employer under the Workmen's Compensation Act. (Ill.Rev.Stat.1973, ch. 48, par. 138.1, et seq.; Pierce v. Commonwealth Edison Co. (1981), 101 Ill.App.3d 272, 276, 56 Ill.Dec. 855, 428 N.E.2d 174; Duffek v. Vanderhei (1980), 81 Ill.App.3d 1078, 1088, 37 Ill.Dec. 52, 401 N.E.2d 1145.) The general rule has been relaxed, however, in order to show a witness' bias or financial interest in the litigation. (Principato; Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill.2d 64, 70-71, 264 N.E.2d 170.) Under this circumstance, it is proper to comment upon the existence of this potential recovery, but not the amount of it. Principato; Sweeney.

In the instant case, defendant was not seeking to establish the financial interest of plaintiff's witnesses. It was seeking only to apprise the jury that plaintiff had a remedy against his employer under the Workmen's Compensation Act and that the action against Greeley was not his only opportunity for compensation. We view the injection of this information as highly prejudicial to plaintiff because it could have the effect of decreasing the jury's award solely because plaintiff had another source of compensation. (See Pierce v. Commonwealth Edison Co. (1981), 101 Ill.App.3d 272, 276, 56 Ill.Dec. 855, 428 N.E.2d 174; Bryntesen v. Carroll Construction Co. (1963), 27 Ill.2d 566, 568, 190 N.E.2d 315.) We further view this information as irrelevant to the issue which was before the jury; i.e., whether defendant was liable under the Structural Work Act. (Ill.Rev.Stat.1973, ch. 48, par. 60 et seq.) Finally, we do not consider improper plaintiff's argument to the jury that this was his "one chance for the compensation." Although plaintiff also had a remedy against E & D under the Workmen's Compensation Act (Ill.Rev.Stat.1973, ch. 48, par. 138.1 et seq.), the policy behind that Act is not to provide compensation for injury but rather "to afford employees financial protection when their earning power is temporarily diminished or terminated due to employment injuries." (Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill.2d 437, 446, 3 Ill.Dec. 715, 359 N.E.2d 125.) We, therefore, find no error in the trial court's refusal to allow defendant to comment upon plaintiff's remedy under the Workmen's Compensation Act.

Defendant's next contention is that the trial court erred in failing to submit an itemized verdict form to the jury. It relies upon section 65.1 of the Civil Practice Act (Ill.Rev.Stat.1979 ch. 110, par. 65.1) as authority for its position. We question the applicability of this statute to the instant case, since the statute was not in effect when the present action was originally filed. (See Ill.Rev.Stat.1979, ch. 110, par. 65.1, effective September 19, 1976.) In any event, defendant has waived this issue by failing to object to the form of the verdict which was submitted to the jury, and by failing to tender an itemized verdict itself. Biundo v. Christ Community Hospital (1982), 104 Ill.App.3d 670, 674, 60 Ill.Dec. 394, 432 N.E.2d 1293; Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill.App.3d 915, 932, 50 Ill.Dec. 470, 419 N.E.2d 578.

Defendant next contends it was error to instruct the jury as to "present cash value" of future damages without actuarial evidence on the formula to be used in arriving at this amount. It claims this is tantamount to giving an instruction which is not based on the evidence. We disagree. There is no requirement in Illinois that actuarial or statistical evidence be presented to guide the jury in its determination of present cash value. (Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill.App.3d 35, 39, 44 Ill.Dec. 113, 411 N.E.2d 19; Lawson v. Belt Ry. Co. (1975), 34 Ill.App.3d 7, 29, 339 N.E.2d 381; Wells v. Web Machinery Co. (1974), 20 Ill.App.3d 545, 559-60, 315 N.E.2d 301.) The jury was instructed that it must compute present cash value and was given the definition of that term. (Illinois Pattern Jury Instructions, Civil, No. 34.02 (2d ed. 1971) (hereinafter cited as IPI Civil).) The formula for calculating present case value is, in our opinion, implicit in the definition. (See Kirk v. Walter E. Deuchler Associates, Inc. (1979), 79 Ill.App.3d 416, 34 Ill.Dec. 780, 398 N.E.2d 603.) We note that defendant has not contested the correctness of the instruction or the definition contained in it. Defendant also does not claim the jury improperly computed present cash value. (Cf. Carlson v. Dorsey Trailers, Inc. (1977), 50 Ill.App.3d 748, 756, 8 Ill.Dec. 679, 365 N.E.2d 1065.) Further, we note that defendant failed to submit another formula which it believed better explained the method of arriving at this figure. (Pennell v. Baltimore & Ohio Ry. Co. (1957), 13 Ill.App.2d 433, 440, 142 N.E.2d 497.) The burden was on defendant to do so if it felt the formula in IPI Civil, No. 34.02 needed supplementing or clarifying. (Pennell.) We think the jury was adequately informed on how to arrive at present case value. In addition, any confusion in how to apply the instruction was adequately clarified by plaintiff's counsel's extensive comments during closing argument on the factors to be considered in computing this figure. We conclude that while an actuary's testimony may be helpful to a jury charged with calculating present cash value, it is not necessary or required before an instruction on this subject may be submitted.

Defendant next claims that evidence of plaintiff's present earnings from David Robinson Construction Company, of which plaintiff is the sole shareholder, should have been admitted into evidence on the issue of lost-earning capacity. Plaintiff, however, contends that these earnings were not admissible because they represented income resulting from the combination of capital and labor and were therefore not indicative of his earning capacity. We agree.

Impairment of earning capacity is a proper element of damages to be considered by the trier of fact. (Buckler v. Sinclair Refining Co. (1966), 68 Ill.App.2d 283, 216 N.E.2d 14.) Recovery, however, must be limited to such loss as is reasonably certain to occur. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill.App.3d 257, 60 Ill.Dec. 21, 432 N.E.2d 920.) Generally, the measure of damages for impairment of earning capacity is the difference between the amount which plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. (See generally, 25 C.J.S. Damages § 87, at 951 (1966).) Damages should be estimated on the injured person's ability to earn money, rather than what he actually earned before the injury, and the difference in the actual earnings of plaintiff before and after the injury does not constitute the measure. (Buckler...