Stasiof v. Chicago Hoist & Body Co.

• Decision Date: 30 June 1964
• Docket Number: Gen. No. 49017
• Citation: 200 N.E.2d 88,50 Ill.App.2d 115
• Parties: Carl M. STASIOF, and John Little, Plaintiffs-Appellees, v. CHICAGO HOIST & BODY CO., Inc., and Domenick Palmieri, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 88

200 N.E.2d 88

50 Ill.App.2d 115

Carl M. STASIOF, and John Little, Plaintiffs-Appellees, v. CHICAGO HOIST & BODY CO., Inc., and Domenick Palmieri,

Defendants-Appellants.

Gen. No. 49017.

Appellate Court of Illinois, First District, Second Division.

June 30, 1964.

George F. Kruse, Harold S. Iglow, Chicago, for plaintiffs-appellees.

Baker, McKenzie & Hightower, Chicago, for defendants-appellants, Michel A. Coccia, Francis D. Morrissey, and Philip J. McGuire, Chicago, of counsel.

BRYANT, Justice.

This is an appeal under Section 76(1) of the Civil Practice Act (Ill.Rev.Stat. c. 110, § 76(1)) from a judgment entered on a jury verdict on May 8, 1962, finding in favor of the plaintiff, John Little, in the amount of $35,000.00 and in favor of the plaintiff, Carl Stasiof, in the amount of $10,000.00 and against the defendants Chicago Hoist & Body Co., Inc., and Domenick Palmieri. Two errors are assigned for reversal: 1. that during the cross-examination of the defendant Palmieri, plaintiffs' attorney posed a prejudicial unfounded question which was not later tied up and which, although stricken from the record, improperly influenced the jury; 2. evidence of an attempted suicide by the plaintiff Little was improperly admitted and improperly motivated the jury in its assessment of damages.

A detailed statement of facts is not warranted in determining this appeal. Plaintiffs were injured throught no fault of their own, when a car, which the jury found to have been nudged by defendants' truck, went out of control, crossed the center line and collided head-on with the plaintiffs' automobile. In the lower court liability was hotly contested between the defendant-counter-plaintiff Robert Sabatka, the driver of the car which crossed the center line and the defendants-appellants Domenick Palmieri, the driver of the truck and Chicago Hoist & Body Co., his employer. The jury absolved Sabatka from liability and found in favor of him against Chicago Hoist & Body Co. and Palmieri. He is not a party to this appeal.

The trial was carried on in a fair manner and the judge and all the attorneys involved have presented a clean record. The one exception of which appellants complain is the following question asked of Mr. Palmieri by plaintiffs' counsel: 'And did you make a statement to anyone that you tried to deviate the direction of your car to avoid a bump and because of that this accident happened?' After the question was asked Palmieri's counsel pointed out to the court that such a statement, if made, could form the basis for impeachment. At this point the question was withdrawn without giving Palmieri an opportunity to answer it. In a discussion in chambers thereafter counsel for plaintiffs stated he had no proof such a statement was ever made. The jury was instructed by the court to disregard the question completely. Appellants feel that the failure of the court to allow them to answer the question raised a prejudicial inference against them.

Prior to the posing of the above question Palmieri had been asked a similar question by the attorney for Mr. Sabatka. That question was: 'Did you ever tell anybody you swerved to avoid a bump?' Palmieri answered: 'I know there was a bump there and I slowed up for that bump.' There was no objection made at that time by defendants' counsel. Although the endings of the two questions were different, the purpose of both questions was to determine whether swerving away from the bump had caused the accident and whether a statement had been made to that effect. The fact that a different ending appeared on the second question would not have affected the answer of Palmieri. His answer would have been substantially the same, and the jury must be presumed to be capable of inferring that the second question would have been answered in a similar manner had the witness been allowed to continue.

In Dodds v. Chicago Transit Authority, 9 Ill.App.2d 388, 132 N.E.2d 816 (1956, abst.) a defendant, Brouilette, who was called as an adverse witness by the plaintiff, was asked the following question: 'Did you ever admit to anyone that you ran a red light, Mr. Brouilette?' After counsel had stated he had no further questions to ask, counsel for Brouilette objected to the question. The court then inquired as to whether counsel for plaintiff had any evidence on the question, and counsel stated that he did not. The lower court then stated: 'The propriety of putting that question--it is objectionable unless you would have some evidence to produce later that such a statement was made or that such an admission was made.' Sustaining the objection, the court instructed the jury to disregard the question and answer. The appellate court stated:

'* * * Brouilette was a party to the suit and at the time of the occurrence he was being examined by the plaintiff under section 60 of the Practice Act, which provides that an adverse party 'may be examined as if under cross-examination.' A greater latitude is permitted in cross-examination of a party in interest than in that of an ordinary witness. Felsenthal Co. v. North. Assur. Co., 284 Ill. 343, 351 [120 N.E. 268, 1 A.L.R. 602]. If the question objected to had been answered in the affirmative, the answer would have had substantive value and would not be merely impeaching. It would have been an admission on the part of the defendant. It would not have been conclusive, but it could properly have been considered by the jury. In questioning a party to the suit in an attempt to bring out an admission it is not necessary to lay a foundation as in the case of an ordinary witness (Johnson v. Peterson, 166 Ill.App. 404), and the decisions have allowed counsel attempting to get in evidence an admission from a party a very broad latitude (Chicago City Ry. Co. v. Canevin, 72 Ill.App. 81; Green v. Jennings, 184 Ill.App. 340). However, we feel that asking a question such as here propounded when counsel had, as he admits, nothing, not even suspicion, upon which to base it, was improper; and the trial court, as soon as it was brought to its attention, properly sustained the tardy objection and instructed the jury to disregard the question and answer. The question as to the latitude of cross-examination is within the sound discretion of the court. * * * Considering the previous testimony of Brouilette, it would be a strained concept of the process of jury deliberation to conclude that an average jury would be so impressed and prejudiced by the question and negative answer, in spite of the fact that the court had instructed them to disregard them, that they would draw therefrom an inference that Brouilette had entered the intersection on a red light. Such a construction is not in accord with common experience; and in any case there was evidence to sustain a finding of the jury, that Brouilette was negligent. Under all the facts and circumstances in the case the court did not err in denying the motion of the defendant to withdraw a juror and declare a mistrial, and no injury thereby resulted to the defendant Brouilette.'

Although the above reasoning seems peculiarly apropos to the facts of this case, each case must turn on its own facts. It is our belief that this record is substantially clean; that the jury could not within reason have been expected to draw an inference contrary to the previously stated answer of the defendant to a similar question; and that there was ample evidence apart from this occurrence to sustain a verdict against the defendants-appellants. Although the posing of one unfounded question is error it is of the kind commonly referred to as harmless. If a pattern of such questions appeared in the record we would be inclined to rule otherwise.

The second question for review concerns the introduction into evidence of the attempted suicide of plaintiff, John Little, some five years after the accident. The introduction of the incident was for the purpose of establishing continual head injury over a period of years becoming so intensive as to compel an attempt upon his own life by John Little. Dr. Dolehide, a general surgeon and plaintiff's treating physician, testified in respect to plaintiff's injuries...