author: MR. JUSTICE MURPHY

text:
    Mary Josephine Rose and Rita Krilcic, Plaintiffs-Appellees, v. B. L. Cartage Company, Defendant-Appellant.
    Gen. No. 51,561.
    First District, First Division.
    May 19, 1969.

      Hinshaw, Culbertson, Moelmamm & Hoban, of Chicago (Perry L. Fuller, D. Kendall Griffith, and Thomas M. Grisham, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which plaintiffs (sisters) seek to recover damages for injuries suffered in an intersectional collision in 1954 between an automobile in which they were riding and defendant’s truck. A trial in 1961 resulted in a jury verdict for defendant, following which a new trial was granted. A second trial in November 1965 resulted in jury verdicts and judgments in favor of plaintiffs — $100,000 for plaintiff Rose and $20,000 for plaintiff Krilcic. Defendant appeals from both judgments. Defendant does not contest plaintiffs’ injuries.

On appeal, defendant contends: (1) that it was error to deny defendant’s motion for a directed verdict and judgment notwithstanding the verdict; (2) the verdicts of the jury were against the manifest weight of the evidence; (3) the trial court committed prejudicial trial errors in (a) refusing certain impeachment evidence, (b) injecting itself into the case, (c) allowing plaintiffs to cross-examine their own witness, and (d) admitting certain evidence; (4) the plaintiffs’ attorney was guilty of misconduct; (5) the jury was improperly instructed; and (6) the deliberations of the jury were subjected to interference.

The collision occurred at approximately 7:00 p. m. on January 29, 1954, at the intersection of Cicero Avenue and 115th Street, Cook County, Illinois. Plaintiffs’ automobile was operated by plaintiff Rose and the tractor-trailer unit, which belonged to defendant, B. L. Cartage Company, was operated by John Poulos. Cicero Avenue was a 4-lane highway running north and south; 115th Street was a 2-lane highway running east and west. Traffic on 115th Street was controlled by stop signs. There was a guardrail parallel to Cicero Avenue on the west side of Cicero, south of 115th Street. West of the guardrail was a gully with water in it, with a culvert south of 115th Street.

The occurrence witnesses included the two plaintiffs, John Poulos (the truck driver), and Bruce Meyers, a motorist who was driving west on 115th Street and entered Cicero from the east.

Plaintiff Rose testified that she was driving a two-tone gray and white Chevrolet east on 115th Street and approached Cicero from the west. She knew there was a stop sign which required eastbound traffic to stop and yield the right-of-way to traffic on Cicero, and that Cicero traffic was not required to stop at 115th Street. She stopped about 10 feet from the west edge of Cicero Avenue, and the right front door of her car was opposite the stop sign. She did not know how far from the west edge of Cicero the stop sign was located, but it was at least 20 feet. Her last recollection was of slowing down and stopping. After being stopped for seconds, her next recollection was coming to in the hospital.

Plaintiff Krilcic testified that when their car stopped the front of the car was about 10 feet from the west edge of Cicero. While in that position she saw headlights of a westbound car on the opposite side of Cicero coming from the east to the west. While the Chevrolet was stopped she was in a sideways position and heard Rose say, “Oh, no.” Krilcic then looked ahead and saw what looked like a black wall with red lights across the top coming toward them — “The next thing I recall is coming to in the car. I was on my knees with the steering wheel at the back of my head. . . . While I was in the car I saw my sister on the street. On 115th. She was close to the car.” Krilcic could not determine if the object coming toward them was moving straight west, but later stated that it was moving southwest. She also said she was looking straight ahead, which would be east, and her impression was “that this black wall was coming directly toward me to the west. I don’t know where it came from.”

John Poulos, the truck driver, testified he was traveling south on Cicero Avenue. After stopping for a red light at 111th Street he continued south in the right-hand lane. The highest speed he reached was 25 to 30 miles an hour. He was aware of 115th Street and knew that its traffic had stop signs. When approximately a block away from 115th Street, he saw a vehicle’s headlights a block to the west on 115th, and he also saw traffic approaching the intersection from the east. The traffic from the east stopped and proceeded forward into Cicero. One car turned north and one turned south on Cicero. Weeds and debris on the west side of Cicero obstructed his view of eastbound traffic on 115th Street. The marker lights of the truck were on, and he thought that the lower beams of the headlights were on. The truck’s right wheels were about 10 inches from the west edge of Cicero as he approached the intersection. The trailer overhangs the wheels approximately two inches.

While approaching the intersection, Poulos’ line of travel was the “extreme outside lane,” and he did not veer off Cicero at any time before reaching 115th Street. He was looking straight ahead and was watching the car from the east, which was turning south on Cicero, because “I was concerned about that particular automobile drifting into my lane of travel. ... I was watching the car at the time of the impact.” He never saw anything to his right. At the time of the collision, the front of the truck was at the south edge of 115th Street and the impact was to the right and rear of where he was sitting.

Bruce Meyers, a witness for defendant, testified that he was driving an automobile west on 115th Street. As he approached Cicero he observed an eastbound vehicle on the other side of Cicero which was traveling slowly as it approached the intersection. He said: “I noticed that it was going very slowly. It was going slower than I was. I would say that it would have to have been less from the intersection than one hundred feet if my estimate of ten to fifteen miles per hour is correct.” Meyers stopped in response to the Cicero stop sign and saw a southbound truck on Cicero 200 to 300 feet north of the intersection. The truck’s headlights were illuminated. He observed no northbound traffic so he pulled out on Cicero, heading north. As he was northbound on Cicero, the truck passed him, going south, and at the same time he heard an impact. He looked around and saw sparks underneath the truck, approximately at the right rear drive wheels. At the time he saw the sparks the truck was southbound on Cicero Avenue, but immediately thereafter it “veer[ed] off to the right into a creek just south of there.” The truck was traveling 30 to 40 miles per hour, and he did not notice anything unusual about the speed of the truck when he saw it approaching.

Bruce Meyers stopped his car and on foot returned to the scene of the occurrence. He found the Chevrolet facing south off Cicero Avenue with about two feet between the east side of the Chevrolet and the west edge of Cicero. The tractor was 40 to 50 feet west of Cicero facing west-northwest. He saw someone lying on the pavement at about the center of the southbound lanes of Cicero Avenue, 15 feet from the west curb and 5 to 10 feet north of the door of the automobile. “The car was located just south of the intersection, very close to the curb of Cicero Avenue, southbound. It was facing south. It would appear that it was parked very close to the curb.”

Neither Rose nor Poulos had any recollection of the position of the vehicles after the occurrence. Poulos testified: “With reference to the impact and the last thing I recall, this car was turning south on Cicero Avenue. That is the last thing I recall.” Plaintiff Krilcie did not know of her own knowledge the position of the Chevrolet after the occurrence. Any impression she had concerning its location came from something she had heard from others.

Plaintiffs’ witness, James Lindsay, a former State policeman who arrived at 115th and Cicero about 7:15 p. m., testified that the right front of plaintiffs’ Chevrolet was against a post which was part of the guardrail running adjacent to the apron of the intersection. The Chevrolet was pointing south-southwest and no part of it was on Cicero Avenue. The car’s left rear wheel was on the apron, which is a portion of the concrete built into the four corners of the intersection to facilitate right-turning. The truck was down in the gully, about 150 feet south of 115th Street and about 50 feet west of Cicero. The front end of the truck was possibly 25 feet south and west of the culvert. About 30 or 35 feet of the guardrail along Cicero was broken. He found Mrs. Rose lying on the apron on the southwest corner west of Cicero Avenue and just outside the automobile. Mrs. Krilcic was in the car lying on the front seat floor.

Lindsay stated the windshield of the Chevrolet was broken on both sides. There was slight damage to the right fender and headlight and the left rear fender was caved in. There were some dents in the upper portion of the saddle tank of the truck, which was located just behind the cab of the truck and straddled the frame. There was no damage to the right front fender, bumper or running board of the truck. Lindsay looked for debris around the area to fix a point of impact but found no debris, broken glass or skid marks. He testified: “I did not find any physical evidence upon which I reached any conclusion as to the point of impact. We drew a point on the report where the outside lane of Cicero would be, crossing the south or eastbound lane of 115th. And I indicated that on my report.”

A post-collision witness called by plaintiffs was Paul Wolff, who was the manager of defendant at the time of the occurrence and in a retired status at the time of the trial. When he arrived at the scene, the Chevrolet and the tractor had been removed, but the trailer unit was still there. The trailer was facing southwest approximately 100 to 200 feet south of 115th Street and 20 to 30 feet west of Cicero toward the north side of the culvert, with its rear end near Cicero. The trailer was approximately 20 feet long. The only damage to the right side of the tractor was to the right saddle tank which was loose, so that one end of it had dropped down. There was gray paint on indentations, and no evidence of any marks, paint or scratches on the right bumper, fender or running board. There was damage to the left side of the tractor, including the headlight, fender and running board.

A post-collision witness of defendant was Robert Arnold, who had gone to the scene of the occurrence in a tow truck in response to a call. When Arnold arrived, the Chevrolet was in the west southbound lane of Cicero, just south of 115th Street, facing south. The tractor-trailer unit was on top of the culvert south of the intersection and west of Cicero Avenue. The rear of the trailer was on the highway, pointing northeast. The tractor was facing northwest suspended above the slough with its right rear wheel on the culvert. He saw a lady lying on the west lane of Cicero along the east side of the automobile which was parked in the outer lane.

Initially considered is defendant’s contention that it was error for the trial court to deny defendant’s motions for a directed verdict and for judgment notwithstanding the verdict, because all the evidence, viewed in its aspect most favorable to plaintiffs, so overwhelmingly favored defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967).

In sum, defendant basically contends that the damage to the vehicles and the position of the vehicles after the collision proved conclusively that the Chevrolet was driven into the side of the truck. Defendant asserts there was no testimony that the truck veered in a southwesterly direction from Cicero Avenue before the occurrence. Rose never saw the truck, and Krilcic saw what appeared to be a black wall in front of their car.

Defendant argues that “the plaintiffs’ testimony that they were stopped at least ten feet west of Cicero Avenue when the accident occurred is inherently improbable. Plaintiffs’ car could not have sustained the type of damage it did under those circumstances. The truck could not have struck the car in that location and then have passed east of the north end of the guardrail as it did. Even in the absence of contradictory evidence a court is not required to accept inherently improbable evidence. Tepper v. Campo, 398 Ill 496, 504-505, 76 NE2d 490, and Michaels v. Midwest Emery Freight Lines, Inc., 81 Ill App2d 277, 280, 225 NE2d 405. In this case two witnesses testified that the truck was on Cicero Avenue at the time of the impact. The plaintiffs’ contention that the truck left Cicero Avenue is supported only by speculation, imagination and conjecture, which are an insufficient base for liability. Plaintiffs allege the truck left Cicero Avenue. They must prove it.”

The post-collision physical facts outlined by the defendant are persuasive, but the evidence which must be considered on this contention includes plaintiffs’ testimony that their automobile was stopped west of Cicero and did not enter that thoroughfare at any time prior to the impact.

Defendant’s driver Poulos said there were two cars from the east which stopped and entered Cicero from the east. One car turned north and the other turned south on Cicero. Poulos was watching the car which had turned south on Cicero. He was concerned about it drifting into his lane of travel, which was the outside lane. He could not move to the left without colliding with the car making the left-hand turn. He said that at the time of the impact he was “looking ahead of me” and was paying attention to that particular vehicle as he crossed the intersection, and he never saw anything to his right. It should be noted here that Meyers testified his was the only vehicle on 115th Street approaching Cicero from the east. He saw no one make a left turn. Meyers saw the Rose car on 115th Street, coming from the west, and noticed that it was traveling very slowly (10 to 15 miles per hour) as it approached Cicero, and it reached the intersection after he did. As he approached Cicero he dimmed his lights and plaintiffs’ car did likewise.

Considering all of the evidence in this case, viewed in its aspect most favorable to plaintiffs, we are not persuaded that plaintiffs’ testimony is inherently improbable or that the evidence so overwhelmingly favors defendant that “no contrary verdict based on that evidence could ever stand.” (37 Ill2d 494, 510, 229 NE 2d 504.) We find no error in the court’s denial of defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

Next considered is defendant’s contention that the verdict of the jury was against the manifest weight of the evidence. We believe the principles to be applied here, in the absence of prejudicial trial errors, are set forth in Schneiderman v. Interstate Transit Lines, Inc., 331 Ill App 143, 147, 72 NE2d 705 (1947):

“ ‘There are many things which a jury observes on the trial in such case that do not appear from the printed record — the appearance of the respective witnesses, their manner of testifying and a great many other circumstances. They are in a much better position in such case to determine the truth of the matter in controversy than a court of review.’ . . . Under the law we cannot disturb the verdict of the jury unless it is clearly against the manifest weight of the evidence. Manifest means clearly evident, clear, plain, indisputable.”

Considering the testimony of the plaintiffs and defendant’s driver as to the position of each car immediately prior to the impact, we find that this is not a case in which an opposite conclusion to that of the jury is clearly evident, as is required before this court can disturb the verdict. Griggas v. Clauson, 6 Ill App2d 412, 419, 128 NE2d 363 (1955).

Next examined is defendant’s charge that it was prejudiced by improper rulings by the trial court during the testimony of both plaintiffs. Defendant states that “Krilcic testified that at the time she came to after the accident her sister’s car was off of Cicero on 115th Street but that she did not know precisely where it was. She later testified that any knowledge she had concerning the location of the car after the accident came from something that she had heard from others since the accident. The defendant then moved to strike the witness’s testimony regarding where the car was after the accident. This motion was denied.” Defendant argues that the testimony was not based on Krilcic’s personal knowledge but on information related to her by third persons, and her testimony on this issue was hearsay and it was error not to strike it.

On this contention the record shows there was a difference between court and counsel as to the area to be covered by defendant’s motion. It is our interpretation of the record that the court endeavored to sustain defendant’s motion insofar as it referred to the location of the car and to deny the motion as to where Krilcic located her sister. We find no prejudicial error here.

Defendant further asserts that “on the redirect examination of Rose, plaintiffs’ attorney attempted to rehabilitate her by reading from her testimony at the first trial with reference to where she stopped her car at the intersection of 115th Street and Cicero Avenue. In so doing the plaintiffs’ attorney read questions and answers from the first trial in which plaintiff Rose located on a photograph marked plaintiffs’ Exhibit 8 the position of her automobile. Plaintiffs’ Exhibit 8 was marked at the first trial, but was not present at the second trial. None of the testimony from the first trial which was read contained any description of the photograph or any description of where on the photograph the plaintiff indicated that the car had come to a stop. Without the presence of the photograph this testimony from the first trial lacked any probative value. It could not rehabilitate or impeach because it did not tell the jury where the plaintiff had previously testified that the car had stopped. ... [I]t was improper to permit plaintiffs’ counsel to imply that she had so testified.”

As to the redirect examination of Mrs. Rose, plaintiffs state that defendant’s counsel, “according to his own statement, inquired of plaintiff Rose during cross-examination whether ‘She at any time testified or pointed out to a photograph that her car was fifteen or twenty feet ahead of the stop sign.’ Thus, it became necessary for plaintiffs’ counsel to demonstrate nothing more by his reference to lost plaintiffs’ Exhibit 8, used during the first trial, than that she had on another occasion identified the location of the place where she had stopped by reference to a photograph.” The record indicates that the question of whether Mrs. Rose had “at any time testified or pointed out tó a photograph that her car was fifteen or twenty feet ahead of the stop sign” was developed by defendant on cross-examination. In our opinion, plaintiffs’ redirect examination of Rose regarding Exhibit 8 [a photograph which was not produced at the second trial] was within the scope of defendant’s cross-examination and not improper.

Defendant further states that during the cross-examination of both plaintiffs, defendant sought to show that both had made prior inconsistent statements. The court sustained a number of objections on the ground that the questions were not impeaching. Plaintiff Rose was cross-examined about the shape of the stop sign beside where she had stopped and how long 115th Street had been paved east of Cicero, in order to test her familiarity with 115th Street. Plaintiff Krilcic was cross-examined as to where her sister’s car was when she came to in the car and what she saw immediately before the collision.

Defendant’s authorities on impeachment include People v. Tate, 30 Ill2d 400, 197 NE2d 26 (1964), where it is said (p 403):

“Impeachment of a witness by a prior contradictory statement is of course an accepted technique. As this court said in People v. Moses, 11 Ill2d 84, 87: ‘Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Smith, 391 Ill 172, 176.) Such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency, and an instruction to the effect should be given upon request. ... It is therefore not hearsay.’ ”

Plaintiffs argue that whether matter is impeaching is, in the first instance, a question of law (Reilly Tar & Chemical Corp. v. Lewis, 326 Ill App 84, 88, 61 NE2d 290 (1942)), and the impeachment must be on a material matter, and it is improper to ask a witness questions on irrelevant matters on cross-examination solely for the purpose of impeaching or contradicting the witness (People v. Kirkwood, 17 Ill2d 23, 30, 160 NE2d 766 (1959)). In Sullivan v. Fawver, 58 Ill App2d 37, 46, 206 NE2d 492 (1965), it is said:

“The testimony of a witness as to a collateral or immaterial matter is not subject to impeachment by proof of its prior contradictory statements.”

We have examined the court’s rulings complained of in the cross-examination of both plaintiffs and find no prejudicial error in the trial court’s rulings on these questions.

Defendant complains that the trial court improperly denied defendant’s request to inspect a report used by Lindsay to refresh his recollection prior to the time of giving testimony and out of court. During the colloquy on this point, plaintiffs’ counsel referred to the document as his work product. Under interrogation by the court, Lindsay finally stated that everything he had testified to came out of his “own memory.” The trial court denied defendant’s request to inspect the report. Defendant further asserts that “the remarks of plaintiffs’ attorney at the close of this episode were improper and prejudicial.”

We agree with defendant that the remarks of plaintiffs’ counsel, which were made in the presence of the jury, could be termed improper, but we find they were not prejudicial.

As to the right of opposing counsel to inspect documents used by a witness to refresh his recollection prior to his court appearance, it is said in 125 ALR 200:

“Notwithstanding authority to the contrary, where a witness has refreshed his present recollection prior to the time of giving testimony by the use of papers or memoranda out of court, it has been held that he will not be obliged to produce them for the purpose of allowing the opposing party to make an inspection.”

In 58 Am Jur, Witnesses, § 601, it is said:

“But according to the authorities generally, the rule does not extend to the situation where a witness has refreshed his present recollection prior to the time of giving his testimony by the use of papers or memoranda out of court. Moreover, there is no right of inspection unless the witness actually uses the papers for that purpose, and further, unless such papers do tend to refresh his memory.”

In the 1968 Cumulative Supplement to Volume 58, p 67, it is said:

“The view that where a witness has refreshed his present recollection prior to the time of giving testimony by the use of papers or memoranda out of court, he will not be obliged to produce them for the purpose of allowing the opposing party to make an inspection of them, is not only qualified by the cases recognizing that the trial judge has a large discretion in the matter, but there is also authority to the effect that even when the witness’ memory has been refreshed out of court, inspection of the memoranda used for the purpose should be had upon request.”

Irrespective of whether the document in question was the work product of plaintiffs’ attorney or not, we conclude that it was not an abuse of discretion and not error to deny defendant’s request to see the report used by Lindsay, prior to testifying and out of court, to refresh his recollection.

As to the testimony of Lindsay, defendant contends that error was committed in the exclusion of evidence relating to the circumstances surrounding plaintiffs’ witness Lindsay’s resignation from the Illinois State Highway Police. “On cross-examination Lindsay was asked what were the circumstances surrounding his leaving the police force. The plaintiffs’ objection was sustained. During the defendant’s offer of proof Lindsay testified that he left the State Police Force rather than face charges of drinking in uniform, filing a false report and perjury under oath at an inquest concerning an occurrence. During the offer of proof he testified that while under oath during another trial he admitted giving false testimony at the coroner’s inquest.” Defendant contends that the offer was of proper impeachment evidence and that it was error to have refused the evidence.

We find no error in excluding evidence as to Lindsay’s resignation from the police force. We believe the controlling rule is stated in Elliot v. Brown, 349 Ill App 428, 434, 111 NE 169 (1953):

“But, assuming Brown lied there, that fact could not be shown or argued to affect his credibility in subsequent litigation involving altogether different subject matter. While it is proper to reflect upon the credibility of a witness by showing that his reputation for truth and veracity in the neighborhood where he lives is bad, it is not permissible to reflect upon his credibility by establishing that on a former occasion he lied about an entirely unrelated matter.”

Defendant next contends that plaintiffs were permitted to improperly cross-examine their own witness, Paul Wolff, who had been defendant’s manager in 1954. In the 1961 trial he had been called by plaintiffs under section 60 as an adverse witness. He had subsequently retired, and in the instant trial he was called by plaintiffs as their own witness.

On direct examination, Wolff testified that he was called to the scene of the occurrence and arrived there after the automobile had been removed. He described the position of the truck and the damage to the truck and the guardrails along the highway. On cross-examination, Wolff also testified that gray paint appeared on the side but not on the front of the truck tractor’s saddle tank. On redirect, plaintiffs’ counsel asked the witness when he had first mentioned the matter of the gray paint on the saddle tank. An objection to the question was made. Court and counsel had discussion out of the presence of the jury. On recross-examination, the witness stated “I did have a chance to see the Chevrolet automobile and I did have a chance to see its color and paint. The paint of the Chevrolet automobile compared with the paint I saw on the side of the saddle tank was identical.”

Plaintiffs’ counsel was allowed over the objection of the defense to ask the witness if he had mentioned the paint on the saddle tank and viewing the automobile prior to the instant trial, and if he had testified on those matters at the previous trial. The witness stated that he had mentioned these matters before but did not recall if he had testified to them at the earlier trial. Defense counsel repeatedly objected on the grounds that plaintiffs’ counsel was cross-examining his own witness. Plaintiffs’ counsel claimed to be surprised by the testimony and contended that he had the right to “awaken the conscience” of the witness.

Defendant’s authorities on the right to “awaken the conscience” of a witness who unexpectedly gives testimony against the party calling him include People v. Michaels, 335 Ill 590, 167 NE 857 (1929), where it is said (p 592):

“If, however, the witness denies the alleged statements the party calling him must be concluded by his answers, and cannot show, either by the written statements of the witness or by other witnesses, that the witness did, in fact, make those statements, either for the purpose of impeachment or as original evidence of the facts sought to be proved.”

Defendant argues that plaintiffs were concluded by Wolff’s answers that he did not recall whether he had ever mentioned these facts before, and the vigorous adverse reexamination of Wolff by plaintiffs’ attorney was improper and defendant was greatly prejudiced. Defendant asserts that the tenor of the redirect examination was such as to suggest that Wolff was testifying falsely in collusion with the defendant. Defendant further states that the trial court improperly allowed Wolff to be examined regarding whether he had conferred with defendant’s attorney before taking the stand; also, that it was improper for the court to allow plaintiff Rose to testify that she was present during the first trial and did not hear Wolff testify concerning anything about the automobile involved in the occurrence.

Plaintiffs assert that they were surprised by Wolff’s statements on cross-examination and contend the scope of the cross-examination by defendant was beyond the scope of the direct. Plaintiffs claim that the statements made by Wolff on the redirect examination as to seeing the automobile and comparing the paint of the automobile with that on the saddle tank were made for the first time at this trial, and as Wolff had never testified to seeing the automobile at the prior trial, they had a right to assume that Wolff’s testimony would be the same as it had been on the prior occasion. Plaintiffs argue that they had the right to show that Wolff did not testify at the prior trial concerning the comparison of paints the same as if he had testified inconsistently at the first trial. Authorities on this point include People v. Wesley, 18 Ill2d 138, 163 NE2d 500 (1960), where it is said (pp 150-151):

“It is a general rule that a party who calls a witness to testify cannot directly impeach his testimony, but certain exceptions indicate that the rule may be in the process of erosion. Thus, where the witness unexpectedly gives testimony against the party calling him, such party has the right of examination to show that the witness gave surprise testimony and to specifically call his attention to former inconsistent statements made by him for the purpose of refreshing his memory or awakening his conscience to the end that he may relent and speak the truth if he is lying. People v. Michaels, 335 Ill 590; People v. O’Gara, 271 Ill 138.
“. . . The extent to which such cross-examination shall be permitted rests largely in the discretion of the trial judge who can best pass upon the question from the manner of the witness, his attitude and appearance. . . . Subject to the factual situations involved, the principles set forth in the cases relied upon by defendant are not contrary to those above set forth.
“. . . We concede that the party claiming surprise should do so with diligence, but we believe that the ultimate decision as to when such cross-examination is to be received is best left to the sound discretion of the trial judge depending upon the facts and circumstances developed at the trial. This view is consistent with the principles heretofore announced.”

Although Supreme Court Rule 238 was not effective until January 1, 1967, subsequent to the instant trial, we believe its tenor should be noted here. The provisions of Rule 238 (Hostile Witnesses) are:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.”

On this rule the Committee Comments were:

“This rule is new. It extends the provision of section 60 of the Civil Practice Act authorizing cross examination to any witness who proves hostile or unwilling and the provision authorizing impeachment by prior inconsistent statements to any occurrence witness who surprises the party calling him by testimony on a material matter that is inconsistent with a prior statement made by him.”

Considering the importance and materiality of the testimony of Wolff that the color of the Chevrolet was identical with the paint he saw on the saddle tank of defendant’s truck, we believe that the cross-examination of Wolff by the defendant on this point was properly permitted. We also conclude that although there was no evidence of a prior inconsistent statement by Wolff on the paint issue, there was sufficient prior conduct by him on which plaintiffs could base a charge of surprise. Therefore, the redirect examination of Wolff was properly permitted.

Defendant next contends that “the plaintiffs’ attorney was guilty of prejudicial misconduct.” Defendant’s first complaint is that plaintiffs’ counsel, during direct examination of Krilcic, asked the witness if she had worked since the time of the occurrence. Upon objection by defense counsel, plaintiffs’ counsel withdrew the question. The defendant states that the question was improper because no foundation was laid and was prejudicial in that it suggested to the jury an element of damages which could not properly be considered.

We find no prejudicial misconduct here. The witness testified on cross-examination that she was not employed at the time of the occurrence and had always been a housewife. Plaintiffs assert the question as to whether Mrs. Krilcic had worked was withdrawn, no instruction on lost wages was given for her, and no complaint is made that the verdict for her was excessive.

Defendant’s second contention of prejudicial misconduct by plaintiffs’ counsel pertains to the cross-examination of defendant’s witness, Meyers. At the close of the plaintiffs’ examination of the witness, plaintiffs’ counsel identified plaintiffs’ Exhibit 175 and ascertained from the witness that it bore the witness’s signature and was in the same condition as when he signed it. “No further questions were propounded of the witness regarding this exhibit. No attempt was made to impeach the witness or to refresh his memory from the statement. When the plaintiffs’ attorney failed to inquire further regarding plaintiffs’ exhibit 175, the defendant moved to strike all testimony pertaining to that exhibit. This motion was denied.” Defendant contends that these questions can have served only the purpose of suggesting to the jury that on a prior occasion Meyers had given information contrary to that given on the witness stand. We find no reason to conclude that the jury would have made the inference suggested by defendant on appeal. We do not consider the questions relating to Exhibit 175 to be prejudicial to defendant.

Defendant also contends that certain remarks of plaintiffs’ counsel in closing argument were misstatements and prejudicial. We have reviewed the remarks complained of and do not consider them to be prejudicial. They appear to be within the scope of the evidence.

Next considered is defendant’s contention that error was committed in the giving of certain of plaintiffs’ instructions and the refusal of one of defendant’s instructions.

Plaintiffs’ instruction No. 11-A, IPI 60.01, set forth the statutory provisions requiring a driver of a motor vehicle to give “a signal of intention to turn right or left.”

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
“ ‘A signal of intention to turn right or left shall be given during not less than the last 100 feet traveled by the vehicle before turning.’
“If you decided that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

Defendant argues that instruction No. 11-A does not recite any law pertaining to any issue of law involved in this case. There was no evidence that defendant’s truck did turn or that its driver intended to turn at this intersection.

On instruction No. 11-A, plaintiffs argue that the evidence showed defendant turned its vehicle from a direct course upon the highway when such a movement could not be made with reasonable safety, and “moreover, it was one of a series and was not directory in nature. The argument concerning signals is purely theoretical. The jury knew what parts of the statute applied to the situation.”

Plaintiffs’ instruction No. 12, IPI 60.01, set forth the statutory provisions requiring that “no person shall drive a vehicle upon any public highway in this State at a speed greater than is reasonable and proper.”

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘No person shall drive a vehicle upon any public highway in this State at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.’
“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

Defendant argues there was no evidence to support the giving of this instruction — “Poulos testified that the highest speed he reached was twenty-five to thirty miles per hour. Neither plaintiff testified regarding the speed of the truck. . . . The record contains no facts from which the jury could find that the truck’s speed was unreasonable or improper.”

Plaintiffs argue as to instruction No. 12 that the testimony of Poulos as to the speed at which he was driving and the evidence of the distance traveled by the truck after the collision provided sufficient evidence to warrant this instruction.

Plaintiffs’ instruction No. 21-A, IPI 60.01, states:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that:
“ ‘When upon any highway in this State during the period from sunset to sunrise, every motor vehicle shall carry two lighted lamps showing white lights or lights of a yellow or amber tint, visible at least 500 feet in the direction toward which the motor vehicle is proceeding.
“ ‘Any motor vehicle, the length of which together with any trailer in tow thereof is more than 25 feet and the width of which is more than 80 inches while being operated on the highways of this State outside the limits of cities, villages, or incorporated towns, during the period from sunset to sunrise, shall display in front of the vehicle two yellow or amber lights, one on each upper front corner of the vehicle, which shall be plainly visible at a distance of 500 feet.’
“If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.”

Defendant maintains that “the lights on the defendant’s truck were lighted. There was no testimony that the lights were not lighted. Nor was there any evidence of how far in front of the truck the lights were visible. There were no facts from which the jury could infer that the defendant had violated this statute.”

As to instruction No. 21-A, plaintiffs argue that the reason for giving the instruction was established by the testimony of Poulos and by Mrs. Krilcic’s statement that she saw “a black wall with red lights across the top coming toward us.” The testimony of Poulos included: “I had what I call marker lights. The marker lights are red in the back and amber in the front. ... I don’t recall if the only lights that I had on were marker lights and parking lights. I don’t remember. I know I had lights on. I don’t remember whether they were the parking lights or the lower beam that I had on. I just don’t remember. I believe that either the parking lights or the lower beams were on. Parking lights are two lights right on top of the headlights on that particular truck. ... I am certain I had these marker lights on.”

On these instructions defendant cites Shore v. Turman, 63 Ill App2d 315, 321, 210 NE2d 232 (1965):

. . [I]f there are no facts supporting the theory, it is error to instruct on that theory. ... To inject into a case by way of instructions an issue not fairly presented by the pleading and the evidence in the case is reversible error.”

We find no prejudicial error in the giving of these three instructions. The record contains sufficient evidence in each area so as to place the giving of these instructions within the sound discretion of the court.

Defendant next complains of plaintiffs’ instruction No. 13-A, IPI 20.01, as follows:

“The plaintiffs claim they were injured and sustained damages while exercising ordinary care, and that the defendant was negligent in one or more of the following respects:
“ ‘Operated and controlled its motor truck so that as a direct and proximate result thereof the plaintiffs were injured;
“ ‘Controlled the motor truck without keeping a proper and sufficient lookout;
“ ‘Turned the motor truck from a direct course upon the highway when such movement could not be made with reasonable safety, in violation of a certain statute;
“ ‘Failed to have proper headlights on the motor truck, in violation of a certain statute;
“ ‘Operated the motor truck at a high and dangerous rate of speed, in violation of a certain statute.’
“The plaintiffs further claim that one or more of the foregoing was the proximate cause of their injuries.
“The defendant denies that it was guilty of any of the negligence claimed by plaintiffs and denies that the plaintiffs were in the exercise of ordinary'care. The defendant further denies that the plaintiffs were injured or sustained damages to the extent claimed.”

Defendant argues that it was improper to give this instruction because there was no evidence that the truck was not lighted in accordance with the statute or that the truck was operated at an improper speed. Defendant further argues there was no evidence that Poulos turned the truck from its direct course on the highway or that he was not keeping a sufficient lookout. We believe there was sufficient evidence for the giving of the instruction.

Defendant further argues that the court improperly refused defendant’s instruction No. 5, IPI 60.01, which set forth the statutory provisions that provided:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute, which provided in part as follows:
“ ‘The driver of a vehicle shall stop as required by Section 86 of this act at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed at such time as a safe interval occurs.’
“If you decide that the plaintiff, Mary Josephine Rose, violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the plaintiffs were contributorily negligent before and at the time of the occurrence.”

Defendant argues that this instruction presented the defendant’s theory of the case, and that because there was evidence to support it, it should have been given to the jury.

Plaintiffs argue, “There was no evidence that plaintiff Rose did not stop and yield the right-of-way to vehicles on Cicero Avenue. Poulos did not know either where the Rose car was or where he was at the time of the collision. Meyers did not. There was no debris found in Cicero Avenue. Plaintiffs’ testimony was uncontradicted. Indeed, without some evidence to support a violation of this statute, the giving of such an instruction would have been reversible error.” In our opinion it was not error to refuse defendant’s instruction No. 5. The testimony of plaintiffs was that they stopped west of Cicero Avenue, and there was no testimony to the contrary.

Defendant further contends that error was committed in that the jury, after several hours of deliberation, was advised by the bailiff that they were to be allowed one hour in which to come to a decision. During the consideration of defendant’s motion for a new trial, testimony on this question was taken. Ann McWherter, a deputy sheriff, appeared as a witness for the defendant. She testified: “I was the custodian in charge of the jury when they commenced their deliberations on November 22, 1965. Those deliberations began about 5:30 in the afternoon. At 12:20, during the course of their deliberations, I did have occasion to communicate with them. At 12:20, I went and rapped on the door and spoke to them and told them that they only had one hour or more to deliberate, which I was instructed to do. I received those instructions before Judge Finnegan went for his dinner in the evening. The jury returned its verdict at 1:00 o’clock a. m. on the 23rd.”

After the testimony of McWherter was taken the court made the following statement: “Now, for the purpose of the record, I want to reiterate that I did not instruct this woman in the fashion in which she has testified.” At a later hearing the plaintiffs called three jurors as witnesses. Each of them testified that during their deliberations the jury was not given any instruction by the bailiff that there was a limitation on the time that they would be allowed in which to reach a verdict. At the conclusion of the hearing the court denied the post-trial motion of defendant.

Defendant contends that the consideration of the matter was inadequate, and defendant was not given a fair and impartial hearing.

On this point, we believe a discussion of defendant’s authorities is unnecessary because of the factual disposition of the question by the court. We find no prejudicial error in the manner in which the trial court conducted the hearing, and the testimony of the three jurors was a sufficient basis for the court to deny the post-trial motion of defendant for a new trial because of improper communications with the jury during its consideration of the case.

Finally, we consider defendant’s contention that the trial court improperly interjected itself into the trial and “persisted in giving resumes of the testimony, characterizing the evidence and taking over the interrogation of witnesses on a partisan basis.” Defendant further complains that instead of simply ruling on plaintiffs’ objections to impeaching evidence, the trial court insisted on reciting and characterizing the evidence, and the record “reflects the inaccuracy of these recitations and characterizations”; that the court, by insisting on giving its version of the testimony, invaded the province of the jury, and its intervention was not neutral but favored plaintiffs.

We agree with defendant’s assertion that “great harm is done when the court misstates evidence or usurps the jury’s function by characterizing the evidence.”

The record reflects that the trial court was quite active in the trial and that there were many spirited exchanges between counsel. The age of the occurrence (1954), a previous trial (1961), and depositions, made a basis for the assertion of inaccurate and faulty recollection by the witnesses in the instant trial (1965). As a result, there were many and extended charges of impeachment, on which it was difficult to rule. In ruling on objections, the court frequently recited and characterized the evidence in the presence of the jury.

A resume of the rulings which defendant claims were improper and prejudicial would unduly lengthen this opinion. It may be reasonably argued that many of these discussions and rulings by the court should have taken place out of the presence of the jury.

The remarks made in Northern Illinois Gas Co. v. Wienrank, 66 Ill App2d 60, 76, 213 NE2d 411 (1966), are appropriate here:

“It is also contended by Defendants that the Trial Court in making rulings on the evidence, by implication criticized or rebuked counsel for Defendants in a manner which prejudiced Defendants in the eyes of the jury and also that Defendants were prejudiced when the Trial Court questioned certain witnesses and thereafter made rulings. While the record discloses that the Trial Court sustained Petitioner’s objections to Defendants’ evidence and offers of evidence, such rulings were consistent with the precedents referred to in the course of this opinion. As Stated in Department of Public Works & Buildings v. Diggins, 374 Ill 11, at page 16, 27 NE2d 826, while remarks of a court made to or in the presence of the jury and having the force of an instruction or opinion on the evidence may be ground for reversal, the Trial Court may properly give its reasons for ruling upon the evidence and it should be accorded reasonable latitude in so doing. As indicated in that case, not every unguarded expression of the Judge stating his reason for his ruling can or should be treated as a ground for granting a new trial unless prejudicial error is clearly shown. The court undertook to question certain witnesses. As the record shows, this was largely done prior to ruling on motions as to their testimony and obviously for the purpose of being clear as to the testimony before ruling on the motion. Such occasional questioning by a Trial Court in absence of a manifest abuse of such procedure would not constitute reversible error (People v. Filas, 369 Ill 51, at 55, 15 NE2d 496).”

After examining this record at length, we conclude that no prejudicial errors were caused by the trial court’s activity and its remarks and rulings made during the trial in the presence of the jury.

In sum, we find no prejudicial error that would warrant the granting of a new trial. It is our opinion that this record shows the proper issues, together with adequate instructions, were submitted to the jury, and that both sides received a fair trial.

For the reasons given, the judgments of the Circuit Court of Cook County are affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Johnson, Defendant-Appellant.
    Gen. No. 52,455.
    First District, First Division.
    May 19, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Louis Johnson, was charged with the crime of unlawful sale of a narcotic drug in violation of section 22-3 of the Criminal Code (Ill Rev Stats 1967, c 38, § 22-3). After a jury trial, he was found guilty and was sentenced to a term of not less than ten years nor more than thirteen years in the penitentiary.

The defendant contends, on appeal, that “he was denied due process of law when the court did not require the State to produce the real name of the alleged informer prior to trial and denied defense counsel’s motion for a continuance.”

The record shows that a public defender was appointed to represent the defendant in December, 1966. This same public defender continued to represent the defendant throughout the subsequent proceedings. On January 20, 1967, and again on March 1,1967, the defendant answered ready for trial. When the case was called on March 7, the defense counsel orally moved that the State produce the informer who allegedly participated in the controlled sale implicating the defendant. The prosecutor stated that the informer had died, whereupon the public defender asked for proof of death and proof that the deceased was in fact the informer. The court directed the State to disclose the name and last known address of the informer. The prosecutor said that the informer was Lulu Reed, but the public defender stated that she was also known by another name.

When the case was called for trial on April 6, 1967, the defense answered ready for trial. The court inquired whether there were any motions to be decided and the prosecutor stated he did not think that any had been filed. The public defender said there were no motions to be filed and that any that had been filed had been decided. The cause was continued on the State’s motion. The case was again called for trial on April 13. Both sides answered ready and when the court inquired whether there were any motions the public defender answered that they had all been taken care of earlier.

The case was called for trial again on April 14, 1967. The public defender informed the court that he thought that his motion requesting the true name of the informer had been denied, but that upon examining the record he found that the court had ordered the State to furnish him with the name and address of the informer. He stated that the State had not complied with the court’s order and he requested compliance. On April 19, the public defender answered ready for trial. When he again requested the real name of the informer and the proper address the court commented that he inconsistently answered ready for trial and at the same time requested information about the alleged informer. Counsel replied “Judge, we are ready, and if we got the name now, that’s fine. We are still ready. I don’t believe giving the name or not giving the name has any affect on our ability to be ready for trial.” On motion of the State the cause was continued to April 25, and the court ordered the State to furnish the defendant whatever information was in their files.

On the afternoon of April 25, both parties answered ready for trial and a jury was selected. Thereafter, in a chamber session, the public defender moved to exclude all witnesses from the courtroom. This motion was agreed to by the State. The State moved to nolle Count II of the indictment and the motion was allowed. The prosecutor then stated that the real name of the informer was Margaret O’Neal, that she was dead, and that her last known address was 5002 South Forrestville. The public defender requested a two week continuance “for the purpose of checking with the coroner’s office to see if this person has existed, to see if this person died.” Counsel also said the defense would need more time “so we could make an investigation as to who this informer was, if she was ever an informer. We have no way of checking this without some time.” The court denied the motion for a continuance.

The record of the trial reveals that Officer Curtis H. Jackson and his partner, Officer Joseph Volpentesta, saw Lulu Reed, a special police employee, about 8:30 p. m. on August 26, 1966. Officer Jackson testified that Miss Reed did not have a handbag. He searched her coat which had two side slash pockets and observed that she put the $13.00 of marked money in her right hand side pocket of her coat and then drove her to the 4300 block of Prairie Avenue. There the police officer observed her talking to the defendant, Louis Johnson. Miss Reed then walked a short distance with the defendant and stood on a corner while the defendant walked through an alley. When the defendant returned, the officers saw her take the money out of her right hand coat pocket and give it to the defendant. At that point the defendant left and Miss Reed returned to the car. They searched her again and found that the marked money was no longer in her possession. On the following day the officers again searched the informer and at 8:30 p. m. returned to the same area. Miss Reed met the defendant and talked with him for a while. The police officers observed the hands of Miss Reed and the defendant meet. Miss Reed then returned to the car and gave the officers a tinfoil package. The police drove up to the defendant, ran towards him, and though they saw him put a shiny object in his mouth they were unable to prevent him from swallowing it. At the police station they made a field test on the contents of the packet the informer had given them. The reaction was purple — positive. Officer Jackson then took the tinfoil packet to the crime laboratory. He further testified that Lulu Reed was also known as Margaret O’Neal and that she was now deceased. He produced a death certificate which was subsequently received in evidence. It showed that Margaret R. O’Neal died on February 8,1967, that her residence at the time of her death was 5002 South Forrestville, in Chicago, that she was black, and that she was divorced.

On cross-examination, Officer Jackson testified that he had received the death certificate the day before trial. At this point the public defender requested leave to have the death certificate overnight. Leave was granted by the court. The public defender then asked Officer Jackson whether the informer was married and an objection was raised and sustained. In chambers the public defender argued that conflicting statements had been made by the prosecutor in that the prosecutor had stated that the informer’s husband had also been an informer and the death certificate showed that the deceased had been divorced. On further cross-examination the public defender then asked:

“Q. Where was Lulu Reed living on October 26, 1966?
“A. At 4253 South Prairie. I am sorry, no, she moved from there. I think she was staying at 50th and Forrestville then.
“Q. Who did she live there with ?
“A. I don’t know.
“Q. What name did she use there, if you know ?
“A. Margaret O’Neal.
“Q. Where else had she lived ?
“Objection.
“The Court: The question may be asked and answered.
“Q. Where else do you know where she lived, what other address ?
“A. At 4253 — I am sorry 4453 Calumet.
“Q. What name was she living there under ?
“A. Margaret Leak.
“Q. What other name have you known her as ?
“A. Margaret Robinson.
“Q. A dope addict, wasn’t she ?
“A. Yes, sir, she was a narcotics user.
“Q. How many times have you used her in the past, officer?
“A. Two or three times in the past.”

Officer Jackson also testified that he had known the informer for more than two years.

Sergeant Charles Vondrak, assigned to the chemistry section of the Police Department, testified that he examined the contents of the tinfoil packet in question and was of the opinion it contained ciacetyl morphine hydrochloride, commonly referred to as heroin.

Officer Joseph Volpentesta was also called to testify. He substantially corroborated the testimony of Officer Jackson as to the details regarding the narcotics incident. On cross-examination, he testified that he had known Lulu Reed about two years and also knew her by the names of Margaret O’Neal and Margaret Robinson.

To begin with, we see no merit to the contention that the court did not require the State to produce the true name of the alleged informer. The record is clearly to the contrary. It further appears that on some occasions, as the trial judge pointed out, the defense would answer ready for trial and on others would answer ready requesting information regarding the reported death of the informer. Indeed the defendant went to trial without asking for this information and did not even ask for a continuance at the time. It was only after the jury had been selected and the prosecutor had divulged the true name of the witness that the issue of the true name of the informer was again alluded to by the public defender. This was also the first time that the defense requested a continuance.

The granting of a continuance to permit preparation for a case is a matter resting within the sound judicial discretion of the trial judge, and we will not disturb the court’s ruling on review unless it is shown that the discretion had been abused. People v. Latimer, 35 Ill2d 178, 220 NE2d 314. A conviction will not be reversed unless it appears that the refusal of additional time in some manner embarrassed the accused in the preparation of his defense and thereby prejudiced his rights. The granting of a continuance to permit preparation for a case necessarily depends upon the facts and circumstances surrounding the request. People v. Solomon, 24 Ill2d 586, 182 NE2d 736.

The defendant refers us to three Illinois cases which recognize the importance of giving defense counsel sufficient time to prepare his client’s defense. In People v. Kenzick, 9 Ill2d 204, 137 NE2d 270, the defense attorney appointed by the court less than thirty days before the trial date moved for a short continuance. His motion was supported by an affidavit setting forth that since the date of his appointment he had been actively engaged in the trial of many cases which involved more than nineteen days of actual trial and he was only able to confer with the defendant for short periods of time. In reversing and remanding the conviction the Illinois Supreme Court held that the appointed counsel, who was busy with prior commitments, should have been afforded reasonable time to obtain all the facts from the defendant and other witnesses. People v. Morris, 3 Ill2d 437, 121 NE2d 810, the second of defendant’s three cases, concerned the question of competency of a court appointed attorney who had not seen the defendant until the day of trial. In People v. Hambleton, 399 Ill 388, 78 NE2d 293, the defendant was placed on trial the same day he was arrested. His counsel went to trial without any preparation.

It seems clear that these cases are distinguishable on the facts. In the case at bar, the defendant was informed by the State a month before the trial that the informer was dead and obviously would not be a witness. The court ordered the State to show defense counsel what information it had regarding this person and if the defendant needed it for his defense he had ample opportunity to obtain it. Instead, the defendant answered ready for trial on several occasions without demanding further information. In fact, on one occasion the defendant’s counsel expressed the view that the true identity of the informer would have no effect on his ability to be ready for trial. On another occasion the defense counsel said he wanted to check with the coroner’s office to see if the informer had died. We believe that the court patiently and conscientiously attempted to aid the defense in every respect. We hold that the record does not reflect that the trial court was guilty of an abuse of discretion to the prejudice of the defendant in failing to grant a continuance under the particular facts and circumstances surrounding the request. People v. Barnes, 26 Ill2d 563, 188 NE2d 7.

In the instant case the State did not rely on the testimony of the informer. Experienced officers closely observed every movement of the defendant and informant on two separate occasions and it was upon their testimony that the defendant was found guilty. The same attorney represented the defendant throughout the proceedings and we are not persuaded after examining the record that the defendant’s attorney was not given every opportunity by the trial court to adequately prepare his client’s defense. The judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.

       It was the contention of the defense counsel that there was never an informer. The defendant’s counsel remarked that if the defendant was sworn he would state that there was no informer involved in the transaction in question. It should be noted that the defendant did not take the stand during the subsequent trial.


author: MR. PRESIDING JUSTICE ADESKO

text:
    Peter Cerone, d/b/a Cerone Construction Company, Third-Party Plaintiff-Appellant, v. William Clark, Jr., Third-Party Defendant-Appellee, and Uptown National Bank of Chicago, Garnishee DefendantAppellee.
    Gen. No. 52,915.
    First District, First Division.
    May 19, 1969.
    Myron Glazer, of Chicago, for appellant.
    Eklund and Eklund, of Chicago, for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from an order of the trial court dismissing several garnishment actions. The third party plaintiff, Peter Cerone, obtained judgments against William Clark, Jr., for merchandise rendered and work performed on Clark’s residence at 4827 North Paulina Street, Chicago, Illinois. To enforce these judgments, Cerone, as judgment creditor, garnished the bank account of the judgment debtor, Clark, held by the garnishee Uptown National Bank of Chicago. The garnishee bank answered that it held sufficient funds to satisfy the judgments, but that an adverse party, Dorothy Clark, the judgment debtors’ wife, had an interest in such account. Accordingly, Cerone served notice upon the adverse claimant to appear in the garnishment proceedings, and she did appear by counsel on September 20, 1967. The attorney for Clark and his wife made an oral statement to the court that the underlying judgments against Clark had been paid and satisfied in certain chancery proceedings for the foreclosure of a mechanic’s lien.

Presented to the court was a Satisfaction Piece, dated May 31, 1967, from case No. 66 CH 1435 of the Circuit Court of Cook County, County Department, Chancery-Divorce Division, wherein Peter Cerone, d/b/a Cerone Construction Company was plaintiff, and William Clark, Jr., Dorothy L. Clark, et al., were defendants, which document stated that a judgment was entered in favor of Cerone and against the Clarks on April 14, 1967, in the amount of $2,700 and costs, which judgment was paid and satisfied. Counsel explained to the court that the Release and Satisfaction was from a mechanic’s lien foreclosure that had been tried recently, and all issues in the case had been disposed of, including any monies that may have been due from Clark to Cerone for materials and supplies. Counsel stated that the two cases now before the court upon which garnishments were being sought were suits wherein material suppliers had sued Cerone, who then sued Clark on a third party action for the same materials and supplies, and were part and parcel of the chancery judgment which had been satisfied. Counsel further stated that Cerone was attempting to collect twice for the same amounts and that he instituted the garnishment proceedings for the purpose of harassment. Counsel demanded that the two garnishment proceedings be dismissed.

In response thereto, Cerone informed the court that he was ready to proceed on the issues before the court, namely, whether or not Dorothy Clark had any interest in the garnished accounts. It was Cerone’s position that the only question before the court was the interest of Dorothy Clark in the bank accounts which had been garnished. He stated further that he received no Notice of Motion or copies of any pleadings to the effect that payment would be the defense to the garnishments and was taken by surprise. Cerone also stated that the bank accounts had been garnished one or two months ago, that defendant’s argument comes too late, that he has waived such defense by reason of his delay in filing any motion, affidavit or petition, and that the adverse claim should be denied and judgment entered against the garnishee.

The court told Clark that he would give him an opportunity to present his arguments in proper form, whereupon all matters were continued to September 25, 1967, without further notice. Cerone protested that Clark had ample opportunity to bring before the court by notice and verified petition his verbal representations, and by his delay had waived such defenses, if any; that the hearing judge of the mechanic’s lien foreclosure case had already denied Clark relief as to the instant judgments; that the assignment judge was not able to help him; that he was shopping for a judge, and that he (Cerone) was continually faced with Clarks’ last minute oral requests for delay. The court nevertheless continued the case to September 25, 1967, to give Clark the opportunity to appear before the court with the necessary documents. On September 25, 1967, the cases were continued to October 16,1967.

When the cases were called on October 16, 1967, a different judge heard the cases and counsel for the Clarks again urged dismissal of the cases upon the basis of the satisfaction pieces he had in his possession, stating that payment was an absolute defense to the garnishment actions. Cerone took the position that since he had received no notice from defendant Clark, he (Cerone) assumed the defense based upon payment had been waived. Orders were entered at the conclusion of the hearing discharging the garnishee bank and dismissing the cases.

Three issues are raised in this appeal. First, whether the defense of payment can support dismissal of the garnishment actions without a written motion, petition or affidavit setting forth such defense; second, by not filing pleadings concerning the defense of payment whether the judgment debtor and adverse claimant waived such defense; and third, whether the trial court correctly dismissed the garnishment proceedings on the oral representation that the underlying judgment was indirectly paid.

Garnishment is a purely statutory proceeding to reach assets of a judgment debtor held by a third party. Such a proceeding was unknown to the common law, and accordingly, must be strictly construed. Powell v. Prudence Mutual Casualty Co., 88 Ill App2d 343, 232 NE2d 155 (1968); LaSalle Opera House Co. v. LaSalle Amusement Co., 289 Ill 194, 124 NE 454 (1920); Ill Rev Stats (1967) c 62, § 33. In every garnishment action a question exists as to the judgment upon which the proceeding is predicated, and the court, garnishee or principal debtor may cause an inquiry into the underlying action. Chiaro v. Lemberis, 28 Ill App2d 164, 171 NE2d 81 (1961); O’Toole v. Helio Products, Inc., 17 Ill App2d 82, 149 NE2d 795 (1958). In the instant case, the judgment debtor orally brought to the attention of the court the fact that the underlying judgment had been satisfied through other proceedings. The judgment creditor, Cerone, never denied this allegation or offered any evidence in opposition to the defense of payment, but insisted the issue of satisfaction was not before the court, and that by not filing a written pleading concerning the defense of payment, such defense was waived.

In Genden v. Bailen, 275 Ill App 382 (1935), it was held that where the underlying judgment has been vacated, the garnishment action is without foundation. In Western United Dairy Co. v. Miller, 40 Ill App2d 403, 189 NE2d 786 (1963), the holding of the Genden case was extended to those situations where the underlying judgment was satisfied. The court reasoned as follows:

“In Genden v. Bailen, . . . this court reaffirmed the generally recognized rule that ‘where the original judgment upon which a garnishment proceeding is founded is vacated, the garnishment proceeding falls with it (citing numerous earlier decisions).’ We are aware of no reason why this rule should not apply as well to a satisfied as to a vacated judgment. Support for such a conclusion is also to be found, by analogy, in Ring v. Palmer, 309 Ill App 333, 32 NE2d 956, .... Nothing was pending except garnishment on a satisfied judgment. The court seemingly had no alternative but to dismiss the proceedings.”

We are of the opinion that Clark’s defense of payment, although oral, was sufficient under the foregoing facts of this case to support the subsequent dismissal of the garnishment actions.

Cerone’s contention that Clark’s defense was waived due to his failure to file a written pleading is without merit. In Ihorn v. Wallace, 88 Ill App 562 (1900), the party who had commenced garnishment proceedings objected, on appeal, that the purported judgment debtor had not filed any petition or pleading setting forth satisfaction of the judgment. The court said, at page 565:

“It is now said that he did not file any petition or pleading setting up his claim. The objections to his claim and to the introduction of evidence in support of it, was not based upon that ground in the trial court and it is too late to raise the question now. In a garnishee proceeding the original defendant may show that since the rendition of the judgment it has been paid or satisfied.”

The same question was raised in Wheeler v. Chicago Title & Trust Co., 217 Ill 128, 75 NE 455 (1906), and the court commented as follows:

“No formal pleadings are required in garnishment and it was proper to set up the facts showing that the suit was premature, in the answer of the garnishee.”

We also reject Cerone’s contention that he was “surprised” when the oral defense of payment was presented. After Cerone was apprised of such defense, on September 20, 1967, there were two continuances of the cases, and on October 16, 1967, twenty-six days later, a hearing on the merits ensued, whereupon Cerone offered nothing in rebuttal of said defense, but stated again he was taken by surprise. Motions to vacate the orders of dismissal were heard on October 27, 1967, at which time Cerone again urged surprise, but to no avail, and the trial court held such defense could be raised without a formal pleading. While section 48(4) of the Civil Practice Act, Ill Rev Stats 1967, c 110, § 43 (4) requires affirmative defenses to be specifically set out where the defense, if not clearly set forth “. . . would be likely to take the opposite party by surprise . . .”, we do not think Cerone was precluded from meeting the defense presented by the Clarks, nor was the posture of Cerone’s case jeopardized, since ample time was afforded him to prepare an answer to such contention.

In our judgment, the trial court correctly dismissed the garnishment proceedings, and the orders of the Circuit Court of Cook County should be affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    Emcasco Insurance Company, Plaintiff-Appellee, v. Joaquin Alvarez and Olga Alvarez, Defendants-Appellants.
    Gen. No. 53,134.
    First District, First Division.
    May 19, 1969.

      Albert Koretzky, of Chicago, for appellants.
    Fischel, Kahn, Weinberg, Diamond & Brusslan, of Chicago (Dan Brusslan and Joel H. Fenchel, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendants [insureds] appeal from a declaratory judgment entered on the pleadings, which found that the defendants were not entitled to pursue a claim under the uninsured motorists provisions of their policy of insurance because defendants continuously failed and refused to submit to oral and medical examinations as required by the conditions of the policy and as requested by plaintiff. On appeal, the principal issue presented is whether the plaintiff had a right to require the examinations following the commencement of arbitration proceedings.

On November 16, 1964, plaintiff insurance company issued its Family Automobile Policy to defendant, Joaquin Alvarez, which included “PART IV — PROTECTION AGAINST UNINSURED MOTORISTS,” for bodily injuries. “Part IV” provided for arbitration in the event the insured and the company (1) “do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured,” and (2) “do not agree as to the amount of payment which may be owing under this Part.”

On February 26, 1965, defendants were involved in a collision with another motor vehicle operated by Charlotte L. Lewis. On January 28, 1966, they informed plaintiff in writing that it would “probably be necessary to make a claim under the uninsured motorists’ provisions of the policy.” On February 11, 1966, plaintiff informed defendants’ attorney that plaintiff had accepted the fact that Charlotte L. Lewis was uninsured at the time of the occurrence. Thereafter, on March 1, 1966, and March 8, the attorney for defendants submitted various medical reports and lost time statements with a view toward settling the uninsured motorist claim with plaintiff.

On April 1, 1966, defendants filed a demand for arbitration with the American Arbitration Association. Thereafter, on April 15, 1966, plaintiff filed its written appearance in the arbitration proceedings. Plaintiff’s appearance included an answering statement, which denied that the claimants were injured by an uninsured motorist and also included was an additional statement, “On behalf of Emcasco Insurance Company, we respectfully request the right to take the oral statements under oath of all claimants involved in this matter, and also demand the right to have an independent medical examination of the claimants in accordance with the Illinois Revised Statutes. May I suggest that when an arbitrator is appointed, this matter be set for sometime in July of 1966, so that we will have enough time to fully investigate this matter.”

Thereafter, on July 7, 1966, plaintiff filed the instant complaint for a declaratory judgment, in which it was alleged that the defendants were not entitled to pursue a claim under the uninsured motorists clause of the insurance policy, because they refused to give oral statements and submit themselves for medical examination pursuant to paragraph 9 of the “Conditions” of the policy, which provided as follows:

“9. Proof of Claim; Medical Reports — Part IV. As soon as practicable, the insured or other person making claim shall give to the company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable. The insured and every other person making claim shall submit to examinations under oath by any person named by the company and subscribe the same, as often as may reasonably be required. Proof of claim shall be made upon forms furnished by the company unless the company shall have failed to furnish such forms within 15 days after receiving notice of claim.
“The injured person shall submit to physical examinations by physicians selected by the company when and as often as the company may reasonably require and he, or in the event of his incapacity his legal representative, or in the event of his death his legal representative or the person or persons entitled to sue therefor, shall upon each request from the company execute authorization to enable the company to obtain medical reports and copies of records.”

In substance, the prayer of the complaint was that the court determine whether defendants had breached the terms and conditions of the policy; and if it was found that the policy had been breached by defendants, enter a declaratory judgment that the defendants were not entitled to any coverage under the uninsured motorists clause of the policy in regard to the claim set forth and not entitled to pursue a claim thereunder.

On November 14, 1966, the trial court denied defendants’ motion to dismiss plaintiff’s complaint. Def end-ants’ answer, filed on January 18,1967, alleged: “[Par 2] . . . that before the defendants commenced their arbitration action, the plaintiff did not require any oral or medical examinations under said Paragraph 9”; “[Par 5] . . . The actual controversy between the parties is whether paragraph 9 of the Conditions of the insurance policy remains applicable where the insurance company has filed a general appearance in a pending arbitration action”; and “[Par 6] . . . The plaintiff did not, as a condition precedent to the arbitration action or to its filing a general appearance in said action, require any oral or medical examinations of the defendants. Instead, it required oral and medical examinations as conditions subsequent to the arbitration action.”

On January 12, 1968, a pre-trial conference was held by the trial court, and an order was entered which found that plaintiff was entitled to have the defendants submit to medical and oral examinations pursuant to the terms of the policy. The order directed the defendants to give their oral statements at a stated time and to submit to medical examination by two named physicians at the convenience of the parties. _

The order of January 12,1968, continued the matter to February 15, 1968, with the proviso “that if the Defendants have failed to comply with the terms of this Order, judgment will then be entered on the pleadings herein, in favor of the Plaintiff and against the Defendants, in accordance with the Complaint of the Plaintiff, filed herein.”

On February 15, 1968, the trial court entered a judgment order which found that the defendants failed to comply with the terms of the order of January 12, 1968, and that “Defendants have refused to give oral statements and have refused to submit to medical examination, all as requested in the notice of the Plaintiff to Defendants set forth in paragraph 10 of the Complaint herein, and as required by paragraph 9 of the conditions of the policy of insurance,” and “that Defendants by their continuing refusal to comply with the provisions of said policy and the provisions of the Order of this Court of January 12, 1968, have violated the terms and provisions of the policy and, consequently, the Plaintiff is not obligated to proceed with the arbitration proceedings set forth in the Complaint herein, and Defendants are not entitled to recover any sum of money from the Plaintiff under the uninsured motorist’s provision of said policy of insurance, and Defendants have no further rights thereunder.” The order further recited that “the Court hereby enters a Declaratory Judgment determining that the Defendants, Joaquin Alvarez and Olga Alvarez, are not entitled to pursue a claim under the uninsured motorist’s clause of said policy of insurance . . . .”

Defendants contend the trial court erred (1) in entering the order of November 14, 1966, which denied defendants’ motion to dismiss; (2) in entering the order of January 12, 1968, which ordered defendants to give oral statements and to submit to physical examination, not sought in the complaint and entered on the court’s own motion; and (3) in granting judgment on the pleadings in favor of plaintiff, which relief was inconsistent with and contrary to undisputed pleadings.

Considered first is defendants’ contention that the complaint was insufficient in law to entitle plaintiff to declaratory relief. Defendants argue that an examination of the complaint reveals that no request for the determination of the validity or construction of any ambiguous provisions of the insurance policy is contained therein, and the plaintiff here simply requested a declaration that the defendants were not entitled to pursue their demand for arbitration under said policy of insurance. Defendants argue that the policy of insurance itself provides no remedy whatever if the insured fails to comply or breaches any condition precedent and “the uninsured motorist coverage contains no provisions concerning cancellation.”

Defendants further argue that “discovery is not permitted, however, under either the Uniform Arbitration Act or the Accident Claims Tribunal Rules of the American Arbitration Association or the insurance policy after the initiation of the arbitration,” and “since the arbitration agreement was and is valid, enforceable and irrevocable, the insurance company’s complaint to revoke its agreement to arbitrate was made without any reasonable cause and not in good faith and should subject it to the payment of defendants’ reasonable expenses together with a reasonable attorney’s fee . . . .” Defendants assert that “where another appropriate action involving the same subject matter and issues is already pending when the declaratory judgment is commenced, a declaratory judgment proceeding will not ordinarily be entertained, in that declarations and decisions must be made in the first instance by the court whose power is first invoked.”

Defendants’ authorities include Trojan Fireworks Co. v. Acme Specialties Corp., 66 Ill App2d 108, 213 NE2d 44 (1965), where it is said (p 114):

“By application of the doctrine of res judicata, where another appropriate action involving the same subject matter and issues is already pending when the declaratory judgment is commenced, a declaratory judgment proceeding will not ordinarily be entertained, in that declarations and decisions must be made in the first instance by the court whose power is first invoked.”

Also, Interlake Iron Corp. v. Dravo Corp., 68 Ill App2d 167, 169, 215 NE2d 137 (1966):

“The good purpose of the Declaratory Judgment Act is clear. The Act was passed to provide expedient relief and to prohibit a multiplicity of suits. It was not designed to supplant existing remedies.”

Plaintiff contends that the instant insurance policy provides, as a precondition to recovery or to the right to seek recovery for claims regarding uninsured motorists, that defendants submit themselves to the oral and physical examinations provided for in paragraph 9 of the “Conditions” section of the policy. Plaintiff maintains that its contract right to demand oral and physical examinations was a precondition to coverage of Part IV of the policy, continuing in nature, and it was terminated by the filing of the arbitration proceedings by defendants. Plaintiff notes that the policy also states that “no action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy . . . .”

After considering the contentions and supporting authorities of both parties, we have arrived at the following conclusions:

(1) Paragraph 9 of the “Conditions” applied to defendants’ uninsured motorists claim, and plaintiff’s rights thereunder were not terminated or lessened by the filing of the arbitration proceedings by defendants. Compliance with paragraph 9 by defendants “as often as may reasonably be required” was continuing in nature and was a condition precedent to the enforcement of defendants’ uninsured motorists claim.

(2) Plaintiff’s declaratory judgment suit, which basically presented a question of coverage, did not supplant an existing remedy or another appropriate pending action. The complaint states a cause of action sufficient to bring it within the provisions of section 57.1 of the Civil Practice Act. The complaint recites in detail an actual controversy between the parties and prays for a declaration of rights having the force of a final judgment which would terminate the controversy or some part thereof. In Greene v. Gust, 26 Ill App2d 2, 6, 167 NE2d 438 (1960), it is said:

“The fact that a plaintiff is not entitled to the precise relief sought, or because the court disagrees with plaintiff’s construction of the contract involved, is not sufficient to dismiss a declaratory complaint. Unless it appears to a certainty that the plaintiff is entitled to no relief on the provable stated facts, the complaint must be sustained.”

We find that the order of November 15, 1966, properly denied defendants’ motion to dismiss. See, also, Liberty Mut. Fire Ins. Co. v. Loring, 91 Ill App2d 372, 376, 235 NE2d 418 (1968).

Considered next is defendants’ contentions that the trial court erred in (1) entering the pre-trial order of January 12, 1968, which ordered defendants to give oral statements and to submit to physical examination, not sought in the complaint and entered on the court’s own motion, and (2) in granting judgment on the pleadings in favor of plaintiff, which relief was inconsistent with and contrary to the undisputed pleadings.

We find that the pre-trial order of January 12, 1968, for the examinations was proper and within the statutory guidelines set forth in section 57.1. The record indicates that there was some question as to whether the plaintiff had properly demanded the questioned examinations. The order by the court for such examinations gave defendants an opportunity to comply with the policy requirements. The order further provided that following the examinations the parties proceed to arbitration, and if defendants failed to comply with the terms of the order, judgment would be entered on the pleadings for plaintiff and against defendants.

In the judgment order of February 15, 1968, the court found that defendants had not complied with the order of January 12, 1968, had refused to give oral statements, had refused to submit to medical examinations as requested and required, and had violated the terms of the policy. Consequently “the Plaintiff is not obligated to proceed with the arbitration proceedings set forth in the Complaint herein, and Defendants are not entitled to recover any sum of money from the Plaintiff under the uninsured motorist’s provision of said policy of insurance, and Defendants have no further rights thereunder.”

We believe that this order was properly entered on the pleadings and that the taking of evidence was not required. There was an actual controversy as to whether defendants were entitled to uninsured motorists coverage. No facts were in dispute because, as defendants stated in their answer, “the actual controversy between the parties is whether paragraph 9 of the Conditions of the insurance policy remains applicable where the insurance company has filed a general appearance in a pending arbitration action.” The order declared that the defendants had no further rights under the uninsured motorists provision of the policy. In our opinion the order made a binding declaration of rights, having the force of a final judgment, and terminated the controversy.

For the reasons stated, the orders of November 14, 1966, and January 12, 1968, and the judgment order of February 15,1968, are all affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


text:
    Andrew Sipiora, Administrator of the Estate of Leonard Sipiora, Deceased, and Jack L. Parrino, Administrator of the Estate of Daniel Proskurnja, Deceased, Joseph Long, a Minor, by Peter Long, His Father and Next Friend, and Sam Lazzara, Jr., a Minor, by Sam Lazzara, Sr., His Father and Next Friend, Plaintiffs-Appellants, v. The Chicago, Milwaukee, St. Paul and Pacific Railroad Company, a Corporation, Defendant-Appellee.
    Gen. No. 53,352.
    First District, First Division.
    May 19, 1969.
    John Narusis, Jr., of Lazzara, Narusis & Stimson, of Chicago (John Narusis, Jr., of counsel), for appellants.
    Reedy, McDonnell & Summers, of Chicago (Thomas J. McDonnell, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The present action was brought to recover damages occasioned by the alleged negligence of defendant in the operation of its train. The court entered judgment on the jury’s verdict for the defendant. The plaintiffs take this appeal from said judgment.

The sole issue on appeal is whether the trial judge committed prejudicial error in his oral instruction to the jury thus warranting the granting of a new trial.

The facts in the instant case are not disputed. On August 19, 1962, plaintiffs were riding in an automobile which was involved in an accident with a Milwaukee Road train at a railroad crossing in the County of Reck, Wisconsin.

The case was tried in Chicago, Illinois, under the comparative negligence law of the State of Wisconsin. After the closing arguments of the litigants and after the court read the written instructions, the trial judge gave the following oral instruction to the jury:

“Now since this case, folks, involved four plaintiffs, and the subject law of governing the case is Wisconsin law, rather than Illinois law, the verdicts are entitled, ‘Special Verdicts/ As you may know, Wisconsin has a comparative negligence rule, and Illinois has a rule which bars the plaintiff from recovering at all if he has negligence, and if that negligence has contributed in any way to it. However, Wisconsin law is the opposite, comparative negligence. These verdicts will reflect that law.”

Following the giving of the instruction the court read four “special verdicts” and explained that the jurors must answer each of the numerous questions contained therein with a “yes” or “no” answer if it were possible. Further, the jurors were informed that should they find both parties negligent, they should take 100% as a base and determine what percentage of all of the negligence was attributable to each of the parties.

The jury returned verdicts finding the driver, Leonard Sipiora, 75% negligent and setting his damages at $25,000. The jury found the three passengers in his car to be 50%, 60% and 50% negligent and set damages in the amounts of $30,000, $60,000 and $3,000 respectively. In accordance with Wisconsin law the court entered a judgment for the defendant in the four consolidated lawsuits reflecting no recovery for any of the plaintiffs.

The plaintiffs contend that the trial court erred in instructing the jury when it suggested that plaintiffs could recover under Wisconsin law even though they were contributorily negligent. It is urged that the court’s comments tended to inform the jury that the plaintiffs could recover irrespective of the degree or percentage of their negligence.

The defendant agrees with plaintiffs that it is reversible error for either the court or counsel to inform the jury of the effect of their verdict on the ultimate result of the case. The defendant, however, contends that the instruction of the trial judge in the present case did not so inform the jury.

Both parties cite the cases of Erb v. Mutual Service Cas. Co., 20 Wis2d 530, 123 NW2d 493; Pecor v. Home Indemnity Co., 234 Wis 407, 291 NW 313; Banderob v. Wisconsin Cent. Ry. Co., 133 Wis 249, 113 NW 738; and Anderson v. Seelow, 224 Wis 230, 271 NW 844.

In Erb suit was brought to recover damages against Frederick Bunge and Alfred Bunge Sr. for personal injuries resulting from an automobile accident. One of the impleaded defendants, Mutual Service Casualty Company, the insurer of the automobile, in its cross complaint denied coverage under an exclusion clause which prohibited sale of the automobile without consent of the insurer. The only question submitted to the jury was whether Alfred Bunge Jr. sold the automobile to his father before the accident. The attorney representing Bunge, in his closing argument, informed the jury that if a sale of the automobile had occurred, the insurance policy would be void. The jury found that there had been no sale. In reversing, the Supreme Court of Wisconsin held counsel’s argument was calculated to inform the jury of the effect of their answer and under the facts prejudiced substantial rights of the insurance company.

In Pecor the plaintiff’s attorney practically informed the jury that if they gave an affirmative answer to a certain question of the special verdict the plaintiffs would be out of court. The remaining two cases merely repeat the proposition announced in the cases discussed above.

We are not in accord with plaintiffs’ argument that if the judge had not given the oral instruction the jury could have come back with a different percentage ratio of negligence permitting actual recovery of money damages. We have carefully examined the oral instruction and do not discern that it was improper or prejudicial to the plaintiffs. The jury’s verdicts clearly show that the jurors did not know how to answer to enable a particular party to prevail. The court’s oral instruction, in our opinion, was given to help the jury understand that their verdicts would reflect the law in Wisconsin and did not affect their answers to the special interrogatories, the ultimate rights or liabilities of the parties, or the final judgment in the litigation. Nor do we agree with the plaintiffs that the comments of the judge tended to inform the jury that plaintiffs could recover something regardless, whether the plaintiffs were negligent to any degree or percentage. This argument can be made in all comparative negligence cases where the jury concludes that the plaintiff was 50% or more negligent and awards damages to plaintiff.

Since the trial court’s instruction to the jury was the only issue raised on appeal, we must assume that the jury was otherwise fully and accurately instructed as to every phase of Wisconsin law materially affecting the rights of each plaintiff and that there is ample evidence in the record to sustain the verdict.

The judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.

       Obviously, the jury is instructed to determine damages as a matter of course. Otherwise, they would know the effect of their determination of the comparative negligence of the parties.