Thurmond v. Monroe, 1-90-2602

• Decision Date: 14 September 1992
• Docket Number: No. 1-90-2602,1-90-2602
• Parties: , 176 Ill.Dec. 350 Hugo and Barbara THURMOND, Plaintiffs-Appellees, v. Ambrose MONROE, Individually and as Agent of Schwerman Trucking Co. and Schwerman Trucking Company, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1048

601 N.E.2d 1048

235 Ill.App.3d 281, 176 Ill.Dec. 350

Hugo and Barbara THURMOND, Plaintiffs-Appellees, v. Ambrose MONROE, Individually and as Agent of Schwerman

Trucking Co. and Schwerman Trucking Company,

Defendants-Appellants.

No. 1-90-2602.

Appellate Court of Illinois,

First District, First Division.

Sept. 14, 1992.

Office of Sweeney and Riman, Ltd., Chicago (Mary Jo Connelly, Georgene M. Wilson and Kenneth J. Barrish, of counsel), for defendants-appellants.

Office of Beermann, Swerdlove, Woloshin & Barezky, Chicago (Alvin R. Becker, Joel M. Horwich and David C. Thomas, of counsel), for plaintiffs-appellees.

Justice MANNING delivered the opinion of the court:

This case involves a negligence action for personal injuries sustained in a vehicular collision on September 19, 1981, between a Chevy Blazer driven by plaintiff Hugo Thurmond (Hugo) and a tanker-truck driven by defendant Ambrose Monroe (Monroe) on behalf of his employer Schwerman Trucking Co. (Employer). Plaintiffs alleged in the amended complaint that defendant Monroe, while operating his vehicle in an easterly direction, crossed over the dividing line separating westbound and eastbound lanes of traffic on Route 64 by Chana Road in Oregon, Illinois and entered into Hugo's lane. Monroe thereby caused his own vehicle to come into contact with Hugo's vehicle and collide with great force. Defendants denied the substantive allegations of the complaint and filed a counterclaim against plaintiff Hugo for property damage to the employer's truck. Hugo settled the counterclaim prior to trial.

Before the trial, which commenced on March 13, 1990, defendants brought a motion for partial summary judgment arguing that the findings in a prior traffic court proceeding in which Hugo was found guilty of a minor traffic infraction, collaterally estopped Hugo from proceeding in the instant action upon the theory that it was defendant Monroe who crossed the center line. Following a full hearing, the trial court denied defendants' summary judgment motion and granted plaintiff Hugo's motion in limine to bar any testimony regarding the traffic court proceeding or the issuance of the traffic citation to plaintiff Hugo for improper lane usage. The trial court also granted plaintiffs' motion in limine to exclude the testimony of the investigating police officer regarding the point of impact.

The trial then proceeded with witness testimony as follows. Plaintiff Hugo testified that he planned to go hunting in Savanna, Illinois on September 19, 1981, and that before he went to bed the preceding night at 9:30 p.m., he drank a couple of beers. He arose at 1:30 a.m. At about 5 a.m. as plaintiff drove his Chevy Blazer proceeding westbound on Route 64 at the Chana Road intersection, he saw the headlights of an 18-wheeler tractor-trailer truck approaching him from the eastbound lane of Route 64. He testified that as the truck got closer, he saw the headlights cross into his lane, but did not have time to avoid a collision. Because he placed his hands over his face and eyes, he did not see what happened next. Upon impact, Hugo was rendered unconscious until he awoke in the hospital. He was treated for emergency care and then transferred to another hospital where he remained for approximately two weeks. He was forced to stay home from work for four months due to the extent of the seriousness of his injuries.

Plaintiff Barbara Thurmond, wife of Hugo, testified about the condition of the Chevy Blazer when she saw it in the garage where it had been taken after the accident. However, she acknowledged that she neither went to the scene of the accident nor observed the condition of the Blazer prior to its removal from the scene. She also testified in detail regarding the extent and effect of her husband's injuries on their home life after he was released from the hospital.

Next, the jury heard detailed evidence deposition from two examining physicians, Dr. Srivastava and Dr. Bartucci regarding the nature and permanency of the injuries suffered by Hugo. Dr. Srivastrava was the neurologist who treated him immediately after the accident. The doctor testified that Hugo's blood alcohol level was .10 which is in the toxic range and, in his opinion, impairs a person's judgment. He also performed a physical examination and diagnosed Hugo's injuries. Six years had elapsed from the original date of the injury until the time Dr. Srivastava saw Hugo again, and, in his opinion, Hugo had made an excellent recovery.

Defendant Monroe testified that he was travelling eastbound on Route 64 in his truck when Hugo's car crossed the center line into his lane thereby causing the accident. Finally, the investigating officer, Denis Rauch, testified as a post-occurrence witness. He stated that at the time of the accident he had been working for the Sheriff's Department for over a year. He received training at the academy which included basic instruction on the investigation of accidents and had investigated 15-20 accidents prior to the present incident. He arrived at the scene of the accident at 4:54 a.m. and observed two vehicles; Hugo's Blazer was in the westbound lane of the road and the employer's tanker truck was lying in a ditch on the south side of the road.

Rauch stated that during the time he investigated this accident, which took a total of eight or nine hours, he looked for skid marks in relation to the center line, damage and gouge marks on the roadway and the location of debris and the placement of vehicles. He then recorded those observations on the police report and took photographs. He stated that he did not observe any skid marks or damage to the highway in the westbound. He took a statement from defendant Monroe and issued a citation to Hugo for improper lane usage. ¹ However, on cross-examination, Rauch admitted that he forgot to put certain observations in the written report such as the location of the skid marks and certain gouge marks. He also conceded that he improperly identified a utility pole in the diagram which he drew at the scene of the accident. Neither could he recall the incident without referring to the report.

The trial court entered judgment on the jury's verdict in favor of Hugo Thurmond and against defendants in the amount of $319,642, reduced by 16.5% for plaintiff Hugo's comparative negligence to $266,901. The jury also returned a verdict of $5,000 in favor of Barbara Thurmond.

Defendants first contend that the trial court erred by denying their motion for partial summary judgment. They assert that their motion was based on the doctrine of collateral estoppel, as it is clear there had been a determination of who crossed the center line by a court of competent jurisdiction in a prior cause of action. (See Blair v. Bartelmay (1986), 151 Ill.App.3d 17, 104 Ill.Dec. 362, 502 N.E.2d 859.) Under Illinois law, the denial of a motion for summary judgment is not reviewable on appeal. (Tripi v. Landon (1986), 140 Ill.App.3d 230, 94 Ill.Dec. 611, 488 N.E.2d 610.) It is well settled that a prior order denying a motion for summary judgment is not reviewable following an evidentiary trial, because the result of any error in such denial is merged by law in the subsequent trial. (See Home Indemnity Co. v. Reynolds & Co. (1962), 38 Ill.App.2d 358, 187 N.E.2d 274; Peters v. United Van Lines, Inc. (1980), 82 Ill.App.3d 104, 37 Ill.Dec. 488, 402 N.E.2d 378; Paulson v. Suson (1981), 97 Ill.App.3d 326, 53 Ill.Dec. 51, 423 N.E.2d 243; Schroeder v. Meier-Templeton Associates, Inc. (1984), 130 Ill.App.3d 554, 85 Ill.Dec. 784, 474 N.E.2d 744.) Thus, even where the evidence indicates that the motion for summary judgment should have been granted the error cannot be reviewed. (Home Indemnity Co., 38 Ill.App.2d 358, 187 N.E.2d 274.) Accordingly, we need not review the trial court's order denying partial summary judgment. Moreover, although defendants' motion for summary judgment was based upon a collateral estoppel argument to preclude an allegedly new determination by the trial court of who crossed the center line, this question was the material issue of fact in dispute to be decided by the jury as the trier of fact.

Defendants next contend that the trial court erred in granting plaintiffs' motion in limine which precluded evidence of Hugo's conviction in a prior traffic court proceeding. We disagree. Hugo was convicted following a plea of not guilty under the provisions of the Illinois Vehicle Code for driving off the roadway. (Ill.Rev.Stat.1989, ch. 95 1/2, par. 11-709(a).) The conviction stemmed from the same occurrence that serves as the basis of the instant lawsuit. Defendants maintain that the trial court's exclusion of evidence as to who crossed the center line and about Hugo Thurmond's conviction were relevant factors that affected Hugo's credibility and was also prima facie evidence of his negligence. To support this theory, they rely upon Thornton v. Paul (1978), 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335 and Smith v. Andrews (1964), 54 Ill.App.2d 51, 203 N.E.2d 160, wherein the Illinois courts sanctioned the admission of a previous conviction in a criminal matter in a subsequent civil proceeding.

In Smith, the court found for the first time in Illinois that under certain circumstances, proof of a criminal conviction may be admitted into evidence at a subsequent civil trial to prove the facts upon which the conviction was based. In Smith, the defendant's prior criminal convictions for robbery and forcible rape were admitted as evidence against him in a subsequent civil proceeding brought to terminate his parental rights. Defendant argued that proof of the prior criminal convictions violated the hearsay rule and were inadmissible to prove that he actually committed the crimes of which he was convicted. The appellate court disagreed and held that the defendant's previous conviction of rape, a felony, was admissible in a later civil case as prima facie...