author: JUSTICE HOPF

text:
    DAVID R. ROBINSON, Plaintiff-Appellee, v. GREELEY AND HANSEN, a Partnership, Defendant and Counterplaintiff-Appellant.—(E & D Robinson Construction, Inc., Counterdefendant-Appellee.)
    Second District
    No. 82—435
    Opinion filed May 11, 1983.

      Julian Johnson, of Snyder, Clarke, Dalziel & Johnson, of Waukegan, for appellant.

      Donald T. Morrison & Associates and Paul S. Chervin, Ltd., both of Waukegan, for appellees.
   JUSTICE HOPF

delivered the opinion of the court:

This case is before us for the second time.

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

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

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

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

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

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

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

Impairment of earning capacity is a proper element of damages to be considered by the trier of fact. (Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 216 N.E.2d 14.) Recovery, however, must be limited to such loss as is reasonably certain to occur. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920.) Generally, the measure of damages for impairment of earning capacity is the difference between the amount which plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. (See generally 25 C.J.S. Damages sec. 87, at 951 (1966).) Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury, and the difference in the actual earnings of plaintiff before and after the injury does not constitute the measure. (Buckler; 25 C.J.S. Damages sec. 87, at 952-53 (1966).) The fact that plaintiff’s earnings after his injury are at the same or greater rate than before is not a criterion as to earning power, since earning capacity may be materially impaired although the employer continues to pay the old rate. (DeWall v. Prentice (Iowa 1974), 224 N.W.2d 428; Vess v. Gardner (5th Cir. 1969), 413 F.2d 424; Anthes v. Anthes (1965), 258 Iowa 260, 270, 139 N.W.2d 201, 208; Rice v. Philadelphia Transportation Co. (1959), 394 Pa. 454, 147 A.2d 627; Kincannon v. National Indemnity Co. (1958), 5 Wis. 2d 231, 92 N.W.2d 884.) Nevertheless, earnings before and after the injury may be helpful to a jury in its determination of the impairment of ability to earn. 25 C.J.S. Damages sec. 87, at 962-63 (1966); Anthes; Boodry v. Byrne (1964), 22 Wis. 2d 585, 126 N.W.2d 503; Smith v. Corsat (1963), 260 N.C. 92, 131 S.E.2d 894.

Where the injured person is self-employed, the problem of determining lost earning capacity is more complicated. Generally, earnings which are derived from the combination of capital and labor should not be considered in determining the diminution of earning capacity. (25 C.J.S. Damages sec. 87, at 955 (1966).) However, it has also been held that a jury may properly consider the profits which have been derived from plaintiff’s management of or activity in a business, as distinguished from profits derived from invested capital. (Bell v. Yellow Cab Co. (1960), 399 Pa. 332, 160 A.2d 437; Hetler v. Holtrop (1938), 285 Mich. 570, 281 N.W. 434.) Corpus Juris Secundum described the circumstances under which income derived from a business may be considered in determining lost earning capacity:

“Where the predominating factor is the directing intellectual and physical labor of the individual, such business may be characterized as personal, and income therefrom may be regarded as earnings, even though others with tools and equipment may aid in the work, as the personal feature prevails over the investment of insignificant capital and the labor of others.” 25 C.J.S. Damages sec. 87, at 956 (1966).

Applying the foregoing principles to the present case, we think the trial court was correct in excluding evidence of plaintiff’s present earnings. On the basis of the record before us, we cannot characterize plaintiff’s wrecking business, which was formed after the dissolution of E & D and of which plaintiff is the sole shareholder, as predominantly personal. The record indicates that following the dissolution of E & D, the assets of that company were merely transferred to the wrecking company. Machinery that would be useful in the wrecking industry was given to plaintiff for use in his new business. These investments are clearly unrelated to plaintiff’s earning capacity after his injury. The record is also clear that while plaintiff operates a bulldozer and backhoe in the business, he also employs others to perform critical functions of the business. We conclude that on the basis of this record the predominating factor of plaintiff’s wrecking company is the investment of significant capital, as well as the use of the labor of others in performing critical functions. Under these circumstances, we do not view plaintiff’s corporate income as an accurate indicator of his earning potential.

Defendant also claims that the testimony of William Schweihs, a vocational rehabilitation counselor, regarding plaintiff’s lost earning capacity was too speculative to be admitted into evidence. We disagree. Mr. Schweihs testified that prior to the accident plaintiff was capable of earning $50,000 per year. This conclusion was based upon an evaluation of plaintiff’s skills and duties in the construction industry prior to the accident. Mr. Schweihs also testified that plaintiff’s earning capacity after the injury was only $10,000. In reaching this conclusion, Mr. Schweihs considered plaintiff’s employability in the wrecking industry, in which he was currently employed, and clerical and machine-tending occupations, as well as periods of unemployment which might occur in those occupations. Thus, plaintiff’s current earning capacity was determined by his current position, duties and skills. (Cf. Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App. 3d 257, 432 N.E.2d 920.) We note that defendant had ample opportunity to cross-examine both Mr. Schweihs and plaintiff regarding plaintiff’s administrative capabilities prior to and after the accident. We see no reason to reverse on this basis.

Defendant’s next contention is that the court erred in striking the testimony of Kenneth Dumas, a safety engineer, on the ground that he was not sufficiently qualified to render an expert opinion on the use of a ladder in the lift station.

The trial judge has broad discretion in determining whether a witness has been qualified as an expert. (Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 362, 438 N.E.2d 1217; Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 256, 417 N.E.2d 154.) To lay a proper foundation for expert evidence, the expert must be shown to have that special knowledge or experience in the area about which he expresses his opinion. (Crabtree v. St. Louis-San Frwncisco Ry. Co. (1980), 89 Ill. App. 3d 35, 38, 411 N.E.2d 19.) A witness whose knowledge is based upon practical experience is no less an expert than one who possesses particular academic or scientific knowledge, and their respective effect on triers of fact is one of degree only; there is insufficient basis for a distinction between them, and it is for the jury to determine the weight to be given their testimony. Brendel v. Hustava (1981), 97 Ill. App. 3d 792, 799, 423 N.E.2d 503.

In the present case, the testimony of Kenneth Dumas was offered for his opinion that a ladder should have been used for ingress and egress from the lift station. Mr. Dumas testified that he was employed as senior safety engineer for Kenny Construction Company, which was engaged in the deep tunnel project in Chicago as well as other forms of heavy construction. He held this position for approximately five months at the time of trial. Prior to this, Mr. Dumas was a safety engineer for Kenny Construction Company for six years, and prior to that he was a field engineer and part-time safety man. He had approximately two years of college, but did not possess a degree. All Mr. Dumas’ training as a safety engineer was therefore obtained through practical experience. Although most of his work experience was obtained through the construction of tunnels and sewers, he was also involved in the construction of numerous underground structures which he testified were similar in many respects to the lift station involved here. This included the installation of manholes into concrete foundations with rungs imbedded into the concrete walls for ingress and egress. Mr. Dumas also attended several safety seminars at the University of Wisconsin, and classes on the Occupational Safety and Health Administration. Mr. Dumas had never previously rendered an opinion in a case concerning a ladder. In preparing his opinion on the safety of the lift station, the witness did not consult any books, texts, or papers on the subject matter of the lawsuit, but relied solely upon the written plans and specifications for the lift station.

On the basis of this record, we think Mr. Dumas was qualified to render an opinion on the safety of the method used for ingress and egress from the lift station. We do not, however, believe that the striking of his testimony in this case requires reversal. Mr. Dumas’ original opinion was based upon the written drawings of the lift station and not upon the station as it was actually constructed. He was, therefore, unfamiliar with the actual layout of the station and his testimony reflected this lack of information. Further, three other defense witnesses testified that a temporary, rather than fixed, ladder should have been used. Although two of these witnesses were associated with Greeley, one was a highly qualified and disinterested witness. We therefore conclude that Mr. Dumas’ testimony was cumulative in nature and no reversible error resulted in striking it from the record. Estate of Whittington v. Emdeko National Housewares, Inc. (1981), 96 Ill. App. 3d 1007, 1011, 422 N.E.2d 26.

Defendant next argues the trial court erroneously refused its tendered instruction No. 13 on the ground that it was repetitious and placed undue emphasis on defendant’s theory of the case. The instruction set forth defendant counterplaintiff’s right to indemnity from E & D on any one of three grounds. The first paragraph alleged a failure of E & D to comply with the temporary structures provision of the specifications. This provision was sent to the jury room along with the instructions and stated, among other things, that E & D had the responsibility to furnish “[a]ll *** ladders *** which may be needed in the construction of any part of the work ***.” Paragraph three of defendant’s tendered instruction alleged E & D’s “failure to provide a portable ladder.”

Instruction of the jury should be accomplished by a summary of the pleadings, concisely stated without repetition and without undue emphasis. (Hammonds v. Inland Tugs Co. (1979), 75 Ill. App. 3d 377, 380, 393 N.E.2d 1328; Herbolsheimer v. Herbolsheimer (1977), 46 Ill. App. 3d 563, 568, 361 N.E.2d 134; Signa v. Alluri (1953), 351 Ill. App. 11, 20, 113 N.E.2d 475.) It has been held that “explaining the ways in which [an] issue could be proven as part of the issues instruction gives undue emphasis to the plaintiff[’s] theory.” (46 Ill. App. 3d 563, 568, 361 N.E.2d 134, 138.) It is clear that paragraph three of defendant’s tendered instruction merely repeated the allegation in paragraph one. The instruction was, therefore, properly refused. Counterdefendant’s instruction No. 2, which was given, contained the same material as defendant’s No. 13.without the repetition. Thus, the jury was instructed as to defendant’s theory of the case, and still found that it was not free from major fault. Under these circumstances, no prejudice has resulted to defendant because of the refusal of defendant’s tendered instruction. (Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 227, 419 N.E.2d 1253; McManus v. Feist (1966), 76 Ill. App. 2d 99, 108, 221 N.E.2d 418.) Where no prejudice is shown the refusal to give a requested instruction cannot be deemed reversible error. Kent.

Next defendant contends it was improperly denied the right to ask Ervin Robinson, president of E & D and plaintiff’s father, whether he had an opinion prior to the accident that the entrance to the lift station was dangerous. The court sustained plaintiff’s objection to the question on the ground that Mr. Robinson was not qualified as an expert and that the question was one for the jury. Although the record may have supported a finding that Mr. Robinson was an expert, we note he was not called to the stand in that capacity by the defendant.

Under ordinary circumstances, an opinion or conclusion of a non-expert witness may not be admitted into evidence, and his testimony must be confined to a report of the facts. (Law v. Central Illinois Public Service Co. (1980), 86 Ill. App. 3d 701, 705, 408 N.E.2d 74; State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 103, 260 N.E.2d 415.) Further, while an expert witness may express an opinion on an ultimate fact in the case, a nonexpert witness may not. LaSalle National Bank v. First City Corp. (1978), 58 Ill. App. 3d 575, 577, 374 N.E.2d 913; Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 122, 273 N.E.2d 809.

In the present case, the jury was required to decide whether the defendant had wilfully violated the Structural Work Act. Under the Act, a wilful violation occurs when one knows of or when, in the exercise of reasonable care, one could have discovered, the dangerous condition. (Peoples v. Granite City Steel Co. (1982), 109 Ill. App. 3d 265, 270, 440 N.E.2d 363; Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App. 3d 526, 528, 418 N.E.2d 822.) Thus, the question of the dangerousness of the entrance to the lift station was an ultimate fact for the jury to decide. Mr. Robinson was not qualified to render an opinion on such facts and, therefore, the objection to the question was properly sustained.

Defendant-counterplaintiff next argues that the trial court improperly entered judgment in favor of counterdefendant E & D on count III of its indemnity complaint. Defendant claims that count III asserted its right to indemnity based upon E & D’s failure to provide insurance as required by its contract with North Shore Sanitary District. We have examined count III of defendant’s counterclaim and find no allegation of E & D’s failure to provide insurance. In fact, the record belies such a contention, since the insurance policy itself was attached to one of plaintiff’s pleadings. (Cf. Zettel v. Paschen Contractors, Inc. (1981), 100 Ill. App. 3d 614, 427 N.E.2d 189.) Further, the record is clear that no real issue of E & D’s failure to obtain insurance was ever developed by defendant-counterplaintiff, nor was the jury ever instructed on this issue. It is apparent that Greeley is here seeking to have E & D declared the insurer of its own wilful violation of the Structural Work Act. Such a result is forbidden under Illinois law as against public policy. (Ill. Rev. Stat. 1973, ch. 29, par. 61; Singleton v. County of Cook (1977), 53 Ill. App. 3d 994, 369 N.E.2d 227; Davis v. Commonwealth Edison Co. (1975), 61 Ill. 2d 494, 336 N.E.2d 881.) Accordingly, the trial court did not err in entering judgment in counterdefendant’s favor on count III of the defendant-counterplaintiff’s third-party complaint.

Finally, defendant contends that the plaintiff and counterdefendant should have been required to pay the total expenses incurred by its out-of-State expert witness, Robert Bald, who was deposed in Illinois at plaintiff’s and counterdefendant’s request.

The trial court has wide pretrial discovery discretion so that its orders concerning discovery will not be modified absent an affirmative showing of abuse which an appellant must clearly show. (73 Ill. 2d R. 201(c)(2); Mistler v. Mancini (1982), 111 Ill. App. 3d 228, 233, 443 N.E.2d 1125.) In the instant case, Mr. Bald’s deposition with plaintiff and counterdefendant lasted for one day, and the other day of his two-day trip was unexplained in the record and presumably was spent with defendant’s attorney. The trial court determined that of the $1,307.78 in expenses incurred by Mr. Bald, only $527.78 of this amount was in relation to the deposition conducted by plaintiff and counterdefendant. We have examined the record and find no abuse of discretion in this regard.

In accordance with the foregoing, the judgment of the circuit court of Lake County is affirmed in all respects.

Affirmed.

UNVERZAGT and REINHARD, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WEBBER

license: Public Domain

text:
    RHODA MAE McMILLEN, Plaintiff-Appellant, v. CARLINVILLE AREA HOSPITAL, Defendant-Appellee.
    Fourth District
    No. 4—82—0462
    Opinion filed May 25, 1983.
    Rehearing denied June 15, 1983.

      H. Carl Runge, Jr., of Runge & Gumbel, P.C., of Collinsville, for appellant.
    Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents another facet in a rapidly developing area of the law: the application of the doctrine of res ipsa loquitur to cases of medical malpractice.

The cause was tried to a jury in the circuit court of Macoupin County on a two-count complaint sounding in malpractice; count I alleged a theory of res ipsa loquitur (hereinafter for convenience RIL), and count II alleged ordinary negligence. At the conclusion of the plaintiffs evidence the trial court directed a verdict in favor of the defendant on the RIL count; the jury returned a verdict in favor of the defendant on the ordinary negligence count. Plaintiff appeals, claiming that the directed verdict was erroneous, or, alternatively, that there was an abuse of discretion on the part of the trial court in denying her motion for continuance. In either event, plaintiff seeks a remandment for a new trial. We disagree and affirm.

Since the directed verdict came at the close of the plaintiffs evidence and since the plaintiff has not appealed the verdict of the jury on count II, we must view the evidence as it existed af the time of the trial court’s ruling. The jury’s verdict cannot be used to support that ruling; it was not in existence at the time. We are aware that this court has upon a prior occasion indicated differently. (Alton v. Kitt (1982), 103 Ill. App. 3d 387, 395, 431 N.E.2d 417, 423.) Upon further reflection we are of the opinion that the statement in Alton was mistakenly made and we decline to follow it.

The plaintiff’s evidence showed that she entered the defendant hospital for correction of a bladder problem. Early in the morning of May 22, 1978, X rays of her kidneys were made. Part of that procedure is to inject the patient with a dye which causes clear images of the kidneys to appear on the X-ray films. The dye is injected intravenously.

Admitted into evidence was an exhibit containing the manufacturer’s recommendations for the use of the dye. In pertinent part these provide:

“Severe, life-threatening reactions suggest hypersensitivity to the radiopaque agent, which has prompted the use of several pretesting methods, none of which can be relied upon to predict severe reactions. Many authorities question the value of any. A history of bronchial asthma or allergy, a family history of allergy, or a previous reaction to a contrast agent warrant special attention. Such a history, by suggesting histamine sensitivity and a consequent proneness to reactions, may be more accurate than pretesting in predicting the likelihood of a reaction, although not necessarily the severity or type of reaction in the individual case.
The sensitivity test most often performed is the slow injection of 0.5 to 1.0 ml of the radiopaque medium, administered intravenously, prior to injection of the full diagnostic dose. It should be noted that the absence of a reaction to the test dose does not preclude the possibility of a reaction to the full diagnostic dose. If the test dose causes an untoward response of any kind, the necessity for continuing with the examination should be carefully reevaluated and, if it is deemed essential, the examination should be conducted with all possible caution. In rare instances, reactions to the test dose itself may be extremely severe; therefore, close observation of the patient, and facilities for emergency treatment, appear indicated.”

The chief X-ray technologist for the hospital testified that he was aware of the recommendations; that when plaintiff arrived at the X-ray department, he explained the test procedures to her; that he inquired of her about allergies, specifically about fish, it appearing that fish contain iodine which is also present in the dye; that the sensitivity test was performed unremarkably; that the full amount of the dye (about 50 cc) was then injected into a vein in plaintiff’s right arm above the elbow; that he carefully observed plaintiff during the entire procedure and did not notice any reactions or anything unusual about plaintiff; and that plaintiff made no complaints during the procedure.

Plaintiff was then returned to her hospital room and about three hours later was returned to the X-ray department for a cystogram test. She was seated in a wheelchair in a corridor in the X-ray department. The technologist was also in the corridor and noticed that plaintiff was having a seizure. In his words, “her whole neck and head *** went rigid and went straight back into the chair.” A physician arrived in the corridor at the same time and he and the technologist placed plaintiff on a stretcher and took her to the emergency room.

Plaintiff’s admitting physician, Dr. Villasenor, examined her there. Her vital signs and blood sugar were normal; a brain wave test was performed, and it was normal. Following the incident plaintiff complained of back pain and X rays were taken of her back on May 25, 1978; these showed a compression fracture of the 11th thoracic vertebra; the films of May 25 were compared with chest X rays made on May 22, the date of the incident, and with older films of the chest made December 12, 1977; neither of the latter showed the fracture. Dr. Villasenor testified that it was possible that the fracture could have occurred during the seizure.

Another physician, Dr. Dunseth, testified on behalf of plaintiff. He stated that based upon his examination of the May 25 X rays his conclusion was that plaintiff had recently suffered a compression fracture of the 11th thoracic vertebra; that the fracture was the result of some sort of trauma, such as an acute flexion injury; that the injury was of a permanent nature, could be painful, and could cause problems in the future.

Plaintiff testified on her own behalf and largely corroborated the sequence of events. She stated that the technologist asked her if she were allergic to fish or iodine, to which she replied in the negative; that he asked no other questions; that while the dye was being injected she complained of a burning at the site; that the technologist replied that this was probably due to the solution with which he had swabbed her arm; that near the conclusion of the procedure her arm was “really hurting” and was “red and beginning to swell up”; that again the technologist stated that it was the swabbing solution; that at the conclusion of the injection she again complained but did not recall what the response was.

Plaintiff further testified that upon her return to her hospital room she felt sick; that the site of the injection had swollen to the extent that it was “half as big as an egg”; that after returning to the X-ray department she still felt nauseated; that she began to feel dizzy and then lost consciousness; that she has experienced pain in her back and takes medication for it. On cross-examination she stated that she complained about the burning in her arm but said nothing about the nausea. She also stated that 42 years previously she had been allergic to the dye used in the cloth of clothbound books, but had never fainted from it.

That was the plaintiff’s evidence upon which the directed verdict was allowed. We view the case in this posture.

At the risk of appearing pedantic and repetitious, we will review some of the fundamentals of res ipsa loquitur as it applies to medical malpractice. We feel especially compelled to do so by reason of a statement in plaintiff’s brief to the effect that causation need not be proved in such a case. This and perhaps other misapprehensions about the doctrine need clarification.

“The doctrine of res ipsa loquitur is not a rule of law but merely a principle of evidence, and the presumption of negligence raised by application of the doctrine is not absolute or conclusive, but is rebuttable.
* * *
As otherwise stated, res ipsa loquitur does not dispense with plaintiff’s proof of negligence, but merely makes the fact of the accident and the circumstances prima facie evidence of negligence ***.” 28 Ill. L. & Prac. Negligence sec. 205 (1957).

The traditional elements of a negligence action which a plaintiff must establish in order to prevail are duty, breach of duty, proximate cause and damage. With the advent of comparative negligence in this State, contributory negligence is no longer an issue in the ordinary negligence action. The term “negligence” is oft’times, perhaps too often, loosely used to mean interchangeably the action itself encompassing the four elements just described or just the element of breach of duty. However, it is clear that proof of causation is a necessary element in RIL. The supreme court has said “that the application of the doctrine of res ipsa loquitur does not affect the necessity or manner of proof of proximate cause and that it is relevant only to the nature of the proof from which the trier of fact may draw an inference of negligence.” Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 304, 312 N.E.2d 259, 262.

The supreme court has adopted rather specialized terminology in the application of RIL to medical malpractice cases.

“The res ipsa loquitur doctrine is a species of circumstantial evidence permitting the trier of fact to draw an inference of negligence if plaintiff demonstrates that he or she was injured ‘(1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant’s exclusive control, and (3) under circumstances indicating that the injury was not due to any voluntary act or neglect on the part of the plaintiff ***.’ (3 J. Dooley, Modern Tort Law sec. 48.02 (1977).” Spidle v. Steward (1980), 79 Ill. 2d 1, 5-6. 402 N.E.2d 216, 218.

These translate into the more traditional terms in our opinion as follows: (1) is breach of duty or negligence; (2) is proximate cause; and (3) is lack of contributory negligence. In medical malpractice cases there is seldom, if ever, a question of duty. The physician is always under a duty to use due care in the treatment of his patient.

It follows that the burden is on the plaintiff to make out a prima facie case of all the elements. Once this has been done, the burden then shifts to the defendant to explain. As was said in Edgar County Bank.

“Under these circumstances, when a causal relationship is shown between an intramuscular injection and an injury, as we said in Metz, 32 Ill. 2d 446, at 451, ‘in view of its superior knowledge of the facts at hand ***’ the defendant hospital ‘has the duty to come forward and make explanation.’ ” Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 306, 312 N.E.2d 259, 263.

As has been said, we are dealing with a directed verdict at the close of the plaintiff’s evidence. The Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14) applies to medical malpractice cases in the same fashion as to other civil litigation. (Spidle.) We must therefore examine the plaintiff’s evidence in support of her prima facie case. Only elements (1) and (2) under the rule of Spidle are involved. No contention is made that plaintiff here was guilty of ¿ny contributory negligence.

The proof of element (1), an occurrence which does not ordinarily happen in the absence of negligence, was controverted. Plaintiff claimed that she complained of burning at the injection site during the administration of the dye; the technologist said that no complaints were heard; however, the manufacturer’s instructions state that a family history of allergy is more significant than other data in evaluating. This proof falls far short of what is observed in Spidle where the attending surgeon testified that he “ ‘operated a little too soon’ ” (Spidle v. Steward (1980), 79 Ill. 2d 1, 10, 402 N.E.2d 216, 220) and an expert witness testified that the result was not what one would normally expect. (79 Ill. 2d 1, 8, 402 N.E.2d 216, 219.) There is nothing in the manufacturer’s recommendations in the instant case to indicate that a delayed reaction of over three hours might be expected, nor was there any expert testimony in the plaintiff’s prima facie case to that effect. We also note that the exhibit in the record of these recommendations indicate “Revised September 1978.” There is no proof of what the recommendations were in May of 1978. Only the plaintiff’s own testimony gives rise to any inference of negligence.

In the same manner, the only proof of element (2), an agency within the defendant’s exclusive control, is a single statement by Dr. Villasenor on direct examination by plaintiff’s counsel as follows:

“Q. And, Doctor, do you have an opinion based upon reasonable degree of medical and surgical certainty as to whether or not the injection of the dye could or might have caused the reaction or episode that occurred in the wheelchair some two and a half, three hours, whatever the record reflects from your notes—
A. I have not seen this kind of reaction before or reaction would be three hours or so following the injection of I.V.P. in this manner that was—
Q. Okay.
A. —that was described. I have not experienced it.
Q. Can you rule it out, though, completely, Doctor?
A. Okay, couldn’t rule it out completely.”

It is thus apparent that while plaintiff might have had a scintilla of evidence in support of her elements, that is insufficient under Pedrick. The trial court was correct in directing a verdict on the res ipsa loquitur count.

Defendant has maintained that the entire question has not been properly preserved for review under Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 415 N.E.2d 337. We have examined the post-trial motion and find it marginally sufficient.

Plaintiff’s alternative ground for reversal rests upon an allegation of abuse of discretion by the trial court in denying her counsel a continuance. The events leading up to this contretemps form a paragon of the law’s delays and resultant poor public image. The complaint was filed June 1, 1979, and is the first entry on the docket sheet in the record. Then ensue 13 pages of docket entries, the last being a motion for extension of time in this court. The case was set for jury trial five times, the last being May 10, 1982. On March 9, 1982, defense counsel by letter informed the court and plaintiff’s lead counsel of a possible conflict with a setting in another trial court. No response to the letter appears in the record. On April 7 defense counsel by another letter informed the court and plaintiff’s lead counsel that the conflict had been resolved. On April 8 the trial judge sent a letter to all counsel confirming the May 10 trial date. That judge was not resident in Macoupin County. On April 26 plaintiff’s lead counsel filed a motion for continuance stating that he had answered ready in two cases in Federal court scheduled for trial during the weeks of May 5 and May 10 and had also answered ready in a case scheduled for trial in another county during the week of May 5. The motion was denied and the instant case was tried by counsel other than plaintiff’s lead counsel. The latter gentleman had been involved since the inception of the case.

A trial court has broad discretion in allowing or denying motions for a continuance, but that discretion must not be exercised arbitrarily. A decisive factor in determining whether a trial court’s ruling on a motion for continuance is correct is whether the party applying for the continuance has shown diligence in proceeding with the cause. (Bullistron v. Augustana Hospital (1977), 52 Ill. App. 3d 66, 70, 367 N.E.2d 88, 92.) Where more than one attorney is involved in a case, the absence of one of the attorneys at the time of trial does not necessarily mean that the cause must be continued (Gould v. Elgin City Banking Co. (1891), 136 Ill. 60, 63-64, 26 N.E. 497, 498; Heideman v. Kelsey (1954), 3 Ill. App. 2d 189, 121 N.E.2d 45 (abstract of opinion)), especially where the attorney who tries the case has been involved from the inception of the case (Ostro, Inc. v. Boydston Brothers, Inc. (1944), 323 Ill. App. 137, 143, 54 N.E.2d 742, 744), and where the attorney who tries the case is competent to try it. Gould.

Lead counsel gave no indication at the time of defense counsel’s March 9 letter that any difficulty might appear and likewise did not respond to defense counsel’s April 7 letter or the court's letter of April 8 until almost three weeks later. The history of the case recited above shows a similar lack of diligence.

Furthermore, an examination of the record discloses that plaintiff’s trial counsel handled the case adequately, especially in view of the paucity of evidence favorable to the plaintiff. There was no abuse of discretion in denying the continuance.

The judgment of the circuit court of Macoupin County is affirmed.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERNON INGRAM, Defendant-Appellant.
    Second District
    No. 81—770
    Opinion filed May 17, 1983.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After bench trial defendant, Vernon Ingram, was found guilty of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)) and thereafter sentenced to 40 years’ imprisonment. He appealed, contending he was not proved guilty beyond a reasonable doubt; that his conviction for murder should be reduced to voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 2(a), (b)), and that the trial court abused its discretion in imposing sentence.

During an argument between defendant and his girlfriend, Amanda Sledge, on the back porch of the home in which they had been living she, according to defendant, produced a knife and attempted to stab him in the head. Defendant warded off the blow with his hand, sustaining a small cut, and knocked the knife from her hand; he then picked up the knife and applied it to her. Amanda, bleeding from her face, ran down the street and defendant followed. He caught her on the front porch of Reverend Lawrence Stewart’s home and stabbed her in the buttocks. She ran into the home with defendant following and Reverend Stewart testified he saw a bloody young woman on the kitchen floor with defendant standing over her holding a knife in his hand. The woman got up and ran into a hallway where she collapsed; defendant followed and again stabbed her a number of times. Defendant then advised Reverend Stewart to call the police and walked outside. •

Police officers and paramedics arrived and found Amanda still alive but bleeding profusely, and she died a short time later in a hospital. The pathologist who performed an autopsy testified Amanda had sustained 25 knife wounds of the head, face, neck, chest, buttocks and extremities. The doctor stated death was caused by massive hemorrhaging and by the collapse of a lung which resulted from a knife wound through her chest. The doctor noted that was the most serious injury and the other wounds would not individually have been sufficient to cause death, although, if taken together, the resulting hemorrhaging might cause death if not treated properly.

In statements given to police officers later that night defendant said that he and Amanda had quarrelled on the porch and that while trying to get the knife from her he made a thrust with it, stabbing her in the chest, and then slashed her three times in the face. Defendant stated he also stabbed her in the buttocks on the Stewart porch and then told Reverend Stewart to call the police. When defendant was advised by police officers that Amanda was dead and that he was being charged with murder, he responded, “I’m telling you she is not dead, but she will be dead when I get out of here. I’ll get a knife and I’ll show her what being cut up is.” Defendant declined to sign a written statement prepared by the officers commenting, “[pjrove it. She is dead, and how is a dead woman gonna talk? It’s my word against hers.”

Defendant testified at trial he had taken LSD earlier that day and thereafter consumed a quantity of bourbon and beer. He stated that Amanda had also been drinking and that she became violent when she did so, having stabbed him on a previous occasion. Defendant testified that when Amanda attempted to stab him in the head on the porch he blocked the blow with his hand cutting it. He stated they struggled and he knocked the knife to the floor then seized it and swung at her without thinking. Defendant testified he could not be certain whether he stabbed Amanda at that time, but that he was afraid for his life and believed she was trying to kill him. She then ran down the street; he followed and saw blood running from her face, then saw “blackness and red all around” and could remember nothing after that. Defendant testified he had no recollection of making a statement to police officers that night.

Defendant contends first the State failed to prove he was not acting in self-defense when he inflicted the stab wound which caused Amanda Sledge’s death. While he agrees that the 24 other wounds he inflicted upon her did not constitute a justifiable use of force, defendant argues it was the first stab wound which was fatal and that injury was inflicted in self-defense.

Section 7 — 1 of the Criminal Code of 1961 provides that a person is justified in the use of force against another

“[WJhen and to the extent that he reasonably believes that such conduct is necessary to defend himself *** against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 7-1.)

Self-defense is an affirmative defense (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 14) and if raised by the evidence imposes the burden on the State to prove beyond a reasonable doubt defendant did not act in self-defense. People v. Williams (1974), 57 Ill. 2d 239, 242, 311 N.E.2d 681; People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021-22, 415 N.E.2d 499.

There was evidence that decedent had a knife and swung it at defendant, cutting his hand. Defendant also testified, however, he disarmed her knocking the knife from her hand to the ground in their struggle on the porch. Defendant then picked up the knife and attacked decedent with it. The evidence disclosed that defendant was 60 pounds heavier and nine inches taller than the female decedent. He initially told the officers he stabbed her in the chest, withdrew the knife and slashed her three times in the face. At trial, however, defendant testified he was uncertain whether he stabbed the victim at all on the porch. Under either version it is apparent defendant’s conduct was not justified in these circumstances as necessary self-defense.

A person is not justified in using deadly force against an antagonist after the latter has been disarmed. (People v. Jordan (1960), 18 Ill. 2d 489, 495, 165 N.E.2d 296; People v. Shipp (1977), 52 Ill. App. 3d 470, 476, 367 N.E.2d 966, appeal denied (1978), 67 Ill. 2d 594; People v. Limas (1977), 45 Ill. App. 3d 643, 652, 359 N.E.2d 1194.) Defendant’s purpose after securing the knife clearly was not directed toward preventing harm to himself, but, instead, to the infliction of injury to Amanda Sledge. The trial court was not required to believe defendant’s exculpatory explanation of the occurrence, and his further conduct left little vitality to the self-defense theory advanced. People v. Adams (1979), 71 Ill. App. 3d 70, 74, 388 N.E.2d 1326.

We will not disturb a trial court’s determination as to whether a killing is justified as necessary self-defense unless under the evidence it is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Evans (1981), 87 Ill. 2d 77, 86, 429 N.E.2d 520; People v. Perez (1981), 100 Ill. App. 3d 901, 906, 427 N.E.2d 229.) We have no such doubt here.

Defendant has further contended in this connection that the State failed to prove beyond a reasonable doubt the cause of death was not the initial stab wound which, he asserts, was inflicted in self-defense, citing People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432; People v. Benson (1960), 19 Ill. 2d 50, 166 N.E.2d 80; People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459. He argues the State has thus failed to prove the death occurred by means of a criminal agency.

There isn’t any question in this case that defendant inflicted all of the 25 stabbing and cutting wounds sustained by the victim, three of which were in the chest, and that she died as a result of defendant’s conduct. In these circumstances it is immaterial whether the fatal wound was inflicted on the porch where the dispute commenced, on Reverend Stewart’s porch or in the Stewart home, in each of which locations defendant stabbed Amanda. He at all times in doing so was acting without lawful justification. The State met its burden of proof in that regard and was not required to establish at which point the fatal wound was inflicted.

Defendant next requests that we reduce his conviction for murder to either “unreasonable belief” or “provocation” voluntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 2(a),(b)). See 87 Ill. 2d R. 615(b)(3).

We heretofore concluded defendant was not acting in self-defense when he inflicted the knife wounds upon decedent and reject his argument that the degree of the offense should be reduced because he reasonably believed his conduct was justified. In our view of the evidence, as also determined by the trial court, any necessary self-defense considerations ceased after defendant disarmed the decedent. There is no evidence of conduct thereafter on the part of decedent which could either reasonably or unreasonably give rise to a belief on the part of defendant that deadly force was necessary to prevent injury to himself. People v. Monigan (1981), 97 Ill. App. 3d 885, 889, 423 N.E.2d 546; People v. Perry (1980), 91 Ill. App. 3d 988, 993, 415 N.E.2d 523, appeal denied (1981), 82 Ill. 2d 586; compare People v. Ellis (1982), 107 Ill. App. 3d 603, 611, 437 N.E.2d 409.

Defendant’s alternate suggestion that he was acting under a sudden and intense passion as a result of serious provocation by Amanda Sledge is contrary to the defenses offered in the trial court. There he argued that he acted in self-defense and also that because of the ingestion of drugs and alcohol he did not know what he was doing when he stabbed her. Defendant has not renewed the latter argument in this court, and we are not persuaded by his present argument.

Voluntary manslaughter has been said to be an acknowledgment by the law of the mitigating effect of human weakness and intense passion in an otherwise unjustified homicide which was committed in a sudden rage or passion engendered by adequate provocation, and not the result of malice conceived before the provocation. (People v. Leonard (1980), 83 Ill. 2d 411, 420, 415 N.E.2d 358; People v. Monigan (1981), 97 Ill. App. 3d 885, 889, 423 N.E.2d 546.) There was evidence of provocation on the part of Amanda Sledge which, in a jury trial, would be sufficient to require voluntary manslaughter instructions if requested by defendant. (See People v. Simpson (1978), 74 Ill. 2d 497, 502-03, 384 N.E.2d 373.) Defendant, however, did not claim in the trial court that he acted under a sudden and intense passion provoked by decedent’s conduct; instead, he testified he feared for his life and that his actions were defensive. People v. Slaughter (1980), 84 Ill. App. 3d 1103, 1109-10, 405 N.E.2d 1295; People v. Goolsby (1979), 70 Ill. App. 3d 832, 837, 388 N.E.2d 894, cert. denied (1980), 445 U.S. 952, 63 L. Ed. 2d 788, 100 S. Ct. 1602.

In a bench trial the trial judge must determine the credibility of the witnesses and the weight to be given to their testimony. (People v. Woods (1980), 81 Ill. 2d 537, 542, 410 N.E.2d 866.) The evidence presented in this case was sufficient to support the trial court’s conclusion defendant acted with malice and without justification for his conduct, and this court may not properly reduce the degree of the offense to voluntary manslaughter.

Defendant also contends the trial court abused its discretion by sentencing him to 40 years’ imprisonment, arguing that his prior criminal record was so minimal the judge stated he would not consider it and, also, that defendant was under the influence of drugs and alcohol when he committed the offense. Defendant requests that we reduce his sentence to 20 years’ imprisonment.

At the sentencing hearing the trial judge thoroughly reviewed the requisite sentencing factors as they applied to defendant and the evidence in this case. The evidence was conflicting as to whether defendant was under the influence of intoxicants at the time of the offense. The witnesses who observed him or had conversation with him testified he spoke normally, had no difficulty in walking and did not appear to be intoxicated. Defendant at that time responded to questions and was fully aware of the circumstances of the offense and his conduct.

We conclude the trial court did not abuse its sentencing discretion and may not therefore reduce the sentence imposed. People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HOPF and UNVERZAGT, JJ., concur.


text:
    MILWAUKEE MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. JOSEPH WESSELS et al., Defendants—(John Bova, Defendant-Appellant).
    Second District
    No. 82—384
    Opinion filed May 17, 1983.

      John L. Heaslip, of Clark & Heaslip, of Rockford, for appellants.
    William R. Brandt, of Livingston, Barger, Brandt, Slater & Sehroeder, of Bloomington, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant John Bova (Bova) appeals from a judgment entered after a jury trial in De Kalb County. Judgment was entered for the plaintiff, Milwaukee Mutual Insurance Company, a corporation (Milwaukee Mutual), after a finding that it was not liable under an oral insurance binder given by Bova. Bova was employed by defendant, Clemons, Shepherd & Eckols, Inc. (CS&E.) On appeal Bova contends the verdict of the jury was contrary to the manifest weight of the evidence, that it should be set aside and judgment should be entered in his favor. In the alternative, he requests that the cause be remanded for a new trial because plaintiff brought out evidence concerning insurance in the presence of the jury.

Milwaukee Mutual had an agency agreement with CS&E whereby CS&E could solicit and sell insurance contracts as agent for Milwaukee Mutual. CS&E was an independent agent for a number of such companies. Defendant, Wessels Plumbing Sales & Service Company (Wessels Plumbing), was the party who sought insurance from CS&E’s agent, Bova.

In January 1977 defendant Wessels wanted to change casualty, liability and workmen’s compensation carriers and spoke to Robert Fay, a broker for health and life insurance. Fay suggested John Bova, vice-president and an employee of CS&E, as a possible agent. Wessels had casualty, liability and workmen’s compensation insurance with the Country Companies and gave these policies to Fay. Fay then put Wessels in direct contact with Bova, who spoke to Wessels by phone about insurance coverage, received the Country Companies’ files and opened his own file. Bova spoke with Wessels on subsequent occasions about the insurance. Finally Wessels suggested that Fay give $500 to Bova. Fay paid Bova on March 3, 1977, at which time Bova stated that he “bound coverage.” Bova testified that he prepared all applications on Milwaukee Mutual forms and bound coverage on identical terms as those that Wessels had had with the Country Companies. However, Bova did not tell Fay or Wessels the name of the insurance company with which Bova intended to secure insurance.

On March 11, 1977, an employee of defendant Wessels Plumbing was involved in an auto accident in a vehicle Wessels had sought to insure. The employee and an individual in the vehicle he collided with were both killed. Bova called Milwaukee Mutual the next day and advised the company that a serious accident had occurred, that he had “bound coverage” for Wessels Plumbing on March 7, 1977, but had no policy number because no policy had been issued. The applications for insurance forms were sent to Milwaukee Mutual on March 14. They were received on March 16 and Milwaukee Mutual rejected the applications for insurance by letter dated March 19, 1977. Milwaukee Mutual filed an action for declaratory judgment, requesting a determination of its liability to insure Wessels’ employee by way of an oral binder issued by Bova. Defendant’s motion for summary judgment was granted. Subsequently, Milwaukee Mutual appealed to this court. On appeal we held that the trial court had improperly found there was no issue of material fact to be decided and the cause was reversed and remanded. This court stated that both parties should be given the opportunity to present evidence on the question of whether Bova and/or CS&E were acting as Milwaukee Mutual’s agents in the transactions. The question was considered to be one of fact. This previous appeal was decided pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23) on September 19, 1979. 74 Ill. App. 3d 1101.

After the cause was remanded, the parties went to trial. Milwaukee Mutual agreed to settle the claims with the three victims of the accident, or their estates. Milwaukee Mutual then amended its complaint and requested indemnification from Bova and CS&E. After trial, the jury returned a verdict for Milwaukee Mutual and against Bova and CS&E in the amount of $184,000.

Bova raises 11 contentions of error in this appeal. The first argument he makes is that Milwaukee Mutual failed to establish that an agency contract existed between him and and Milwaukee Mutual. Although Bova concedes that he was an employee of CS&E, he urges that he should not be bound by the CS&E agency agreement with Milwaukee Mutual because he did not assent to that agreement. Bova contends that because there was no evidence of assent, there was no agency relationship between Milwaukee Mutual and him. Therefore, he urges the findings of the jury were contrary to the manifest weight of the evidence. We disagree.

There is no requirement that Bova expressly assent to a contract in order to be bound by it. An agency relationship need not be based on an express appointment and acceptance. (Lilly v. County of Cook (1978), 60 Ill. App. 3d 573, 580, 377 N.E.2d 136.) Unless there is no dispute as to the parties’ relationship, the existence and scope of an agency relationship are questions of fact, to be decided by the trier of fact. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill. App. 3d 576, 579, 420 N.E.2d 478.) Agency is a consensual, fiduciary relationship whereby the principal has the right to control the conduct of the agent, and the agent has the power to effect the legal relations of the principal. (Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 724, 413 N.E.2d 457, 463.) The agency relationship differs from other fiduciary relationships in that it is the duty of the agent to respond to the desires of the principal. (Slates.) By referring to the situation occupied by the parties, and their acts, the existence and extent of an agency relationship can be shown, even if by circumstantial evidence. Kalman v. Bertacchi (1978), 57 Ill. App. 3d 542, 548, 373 N.E.2d 550, 556.

In the case at bar there was no evidence to suggest anything other than that Bova was acting as agent for an insurance company. At trial the whole substance of Bova’s argument was that he was authorized to, and had bound an insurance contract for Milwaukee Mutual. We believe the jury’s decision was well within the manifest weight of the evidence in this regard.

The second contention raised on appeal concerns plaintiff having elicited testimony concerning Bova’s errors and omissions insurance. Bova contends that this reference to his liability insurance was prejudicial and reversible error. The reference to insurance occurred in the testimony of Robert C. Fay, who testified he was a friend of Wessels and had recommended to Wessels that John Bova could possibly get him the best rate on insurance. Later, when Fay heard that one of Wessels’ vehicles had been in a serious accident, Fay called Bova to find out if he had heard about the accident. On cross-examination Fay was asked if Bova mentioned “what would be the responsibility if it were not bound?” At this point Bova’s attorney objected. During a side-bar, he urged that Fay was going to respond to the question by mentioning insurance. Bova’s attorney would not agree to a compromise (i.e., giving a response to the question but leaving the word insurance out). The trial court ruled that the question and answer were proper because they constituted an admission against interest. The court overruled the objection. Fay then responded to the question by saying that Bova “indicated that if he was not bound, his errors and omissions insurance carrier would be — [objection and ruling deleted] the ones who would pick up the claim, or the liability in this case.”

As defendant Bova points out, it is well settled that the injection of insurance into a case is reversible error. (Foster v. Lanciault (1979), 70 Ill. App. 3d 962, 966, 388 N.E.2d 1140.) However, there are limitations to this principle; an example is where the subject arises as an admission of liability. Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 362 N.E.2d 446.

In an analogous situation, where a doctor charged with malpractice was alleged to have stated he may have been at fault and that he had an insurance policy of $100,000 for malpractice, the court found such a statement to be an admission. (Asher v. Stromberg (1966), 78 Ill. App. 2d 267, 278, 223 N.E.2d 300.) While Bova’s statement could be viewed as an admission, it would be by inference rather than because of what he stated. Bova merely indicated his own insurance would cover it if the binder he sought with Milwaukee Mutual did not. There is a substantial difference between admitting liability, as occurred in Asher, and simply admitting that you have insurance to cover a possible liability. Although this is a close situation, we do not believe the testimony elicited from Fay was an admission against interest. For these reasons, and because the reference to Bova’s insurance was repeated by plaintiff's counsel in closing argument, we believe that allowing the reference to Bova’s insurance was error.

Having found error, we next consider what prejudicial effect the reference to insurance may have had on the jury. The case at bar is different from most where reference to insurance coverage is argued. The whole of this case deals with insurance — agents, companies and contracts. Thus, it would likely come as no surprise to the jury that Bova himself had insurance. While reference to insurance during trial is generally improper, it is not per se reversible, as prejudice must be shown. (Joynt v. Barnes (1979), 71 Ill. App. 3d 187, 198, 388 N.E.2d 1298, 1306.) We believe this is important in a case such as this, which is concerned solely with matters concerning insurance. The vast majority of cases where evidence of liability insurance was considered reversible error are personal injury cases.

Recently, some cases have discussed the diminishing relevance of the rule prohibiting the mention of insurance coverage. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 129, 371 N.E.2d 232, appeal denied (1978), 71 Ill. 2d 597.) It has been noted that the mention of insurance is not quite the bete noir that it was a generation or more ago. Kosch v. Monroe (1982), 104 Ill. App. 3d 1085. 1094. 433 N.E.2d 1062. 1069.

Similarly, in cases where insurance coverage was discussed at trial, it has been held on appeal that where the case was not close and the verdict was not excessive, the circumstances did not warrant a new trial. (Seyferlich v. Maxwell (1961), 28 Ill. App. 2d 469, 479, 171 N.E.2d 806; Pinkerton v. Oak Park National Bank (1958), 16 Ill. App. 2d 91, 104, 147 N.E.2d 390.) Under the circumstances of the case at bar, we do not believe that the improper remarks regarding insurance were made pursuant to a design or to create prejudice. (Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 269, 362 N.E.2d 446.) Although we do not agree with the trial court’s conclusion that the reference to insurance was an admission, we do not believe the remarks were so prejudicial as to be reversible error. We do believe that the record shows a complete basis for liability and that the damage award is reasonable. Therefore, a reversal is not required. Sheley v. Guy (1976), 63 Ill. 2d 544, 546, 348 N.E.2d 835.

The remaining contentions raised in this appeal urge that the evidence did not support the verdict. Thus, Bova contends, the verdict of the jury was contrary to the manifest weight of the evidence.

Turning to the third issue, Bova contends CS&E was authorized, under the agency agreement, to accept business from him because he was a licensed solicitor for CS&E. Because CS&E was authorized to bind and execute contracts for Milwaukee Mutual, Bova argues, any insurance contracted for in accordance with the agency agreement would be binding upon the plaintiff. Bova contends that the evidence showed that Milwaukee Mutual should have been required to provide the insurance Bova sought. We disagree.

After the loss suffered by the proposed insured, Milwaukee Mutual rejected the claim Bova presented. The basis for that rejection was that CS&E did not have binding authority on the date of loss, because under the Key Business Guide manual, the effective date for coverage would begin five days after that loss. (Defendant’s exhibit No. 8.) This evidence, which was presented to the trier of fact, defeats Bova’s argument. From the evidence presented, the jury could have found the insurance was not binding because it was not contracted for in accordance with the agreement between the parties. Unless the verdict reached by the jury is unreasonable, arbitrary or not supported by the evidence, it should not be disturbed on review. (Robinson v. Wieboldt Stores, Inc. (1982), 104 Ill. App. 3d 1021, 433 N.E.2d 1005.) Here, there was no showing of arbitrariness or unreasonableness, and there was ample evidence presented to the jury to support the verdict.

In the fourth contention on appeal, Bova urges that defendant Fay did not broker Wessels’ insurance through CS&E. Fay, who was named as party defendant in the original complaint filed below, was the individual who initially referred Wessels to Bova. Bova concedes that the agreement with Milwaukee Mutual prohibited an agent from binding a risk for, or on behalf of, a broker. At trial, Milwaukee Mutual urged that Fay was acting as a broker in his dealings with Bova and Wessels. Bova urges that Fay was not a broker under the statute defining that term. Ill. Rev. Stat. 1977, ch. 73, par. 1065.37.

However, there was ample evidence presented at trial to indicate that Fay was acting as a broker. First, he is a licensed broker, albeit not in a casualty line. Also, Wessels’ contract with Bova was negotiated through Fay, and Fay advanced the initial payment of premium for Wessels. Thus, the determination made by the jury was well within the manifest weight of the evidence.

Bova’s fifth contention concerns Milwaukee Mutual’s requirement that applications for insurance bear a postmark of less than 48 hours from the requested effective date. Bova presents a hypothetical situation, arguing that even if he had complied with the 48-hour rule, the applications would have arrived three to four days after the oral binders, and the loss would still have occurred prior to plaintiff’s receipt of the applications. Contrary to defendant’s assertion, the importance of time in insurance contracts is critical. Obviously the regulation is intended to avoid the unlikely situation where an agent backdates an oral binder, thus making an insurance company liable for a loss that actually occurred before coverage began. Whether or not this could have occurred in the case at bar, the question of whether Bova complied with the terms of the contract was a jury question-weighing evidence and resolving doubts are proper functions of the trier of fact and a court of review should defer to its judgment unless there has been an abuse of discretion. Garrison v. Garrison (1979), 75 Ill. App. 3d 726, 394 N.E.2d 788.

The sixth allegation of error is an extension of that just discussed. Bova contends that Milwaukee Mutual waived application of the 48-hour binding rule by making exceptions to it in the past. While there was evidence that plaintiff had waived application of the rule, the trier of fact was in a better position to evaluate the weight to be given that evidence. It had every opportunity to consider this point in reaching its verdict.

Bova’s seventh contention concerns a letter from Milwaukee Mutual to CS&E. The letter set forth a new rule and required that the initials of one of the corporate officers be on all new business. Bova argues that this rule was no longer in effect at the time of the loss in this case, or, if it was in effect, plaintiff had made exceptions to the rule by waiving its application in certain instances. The letter setting forth the initials requirement was made an exhibit in the case, and the jury had the opportunity to consider its terms. Whether the terms of the letter were complied with was a factual question. There was ample evidence to support the verdict in this regard.

Bova’s eighth contention concerns another letter from Milwaukee Mutual to CS&E, this one concerning “over the road truck business.” This letter was apparently intended to prohibit new truck business. Bova concedes that he heard a discussion of the contents of the letter, but argues he should not be bound by it because he was not in the truck line. Nonetheless, even if it is assumed that this is a relevant issue of the case, it was clearly a jury consideration. The jury had a full opportunity to consider if Bova was prejudiced by the letter or exhibits.

Bova’s ninth contention is an extension of the argument that Milwaukee Mutual waived any limitations of authority to bind commercial auto by accepting certain applications that included commercial auto. (Defendant’s exhibits Nos. 6 and 15.) Apparently Bova’s argument is that plaintiff had made exceptions to its rule on new commercial auto — so this case should be an exception as well. Again, this was a factual dispute for the trier of fact. It should not be disturbed on appeal unless the verdict was not supported by the evidence. We defer to the decision reached by the trier of fact.

The tenth contention on appeal concerns another factual issue. The Key Business Guide requested that agents not bind coverage when the applicant has had a prior cancellation. In the case at bar Wessels had not paid the premiums for his prior casualty policies. Bova assumed that Wessels’ policy had lapsed for nonpayment but did not consider this to be a cancellation as defined in the Key Business Guide. Bova urges that a lapsed policy is not a cancelled policy. This is a factual question. A court of review is “not warranted in reversing the holding of the trial court where the decision rests upon a disputed question of fact unless that decision is contrary to the manifest weight of the evidence.” State Farm Mutual Automobile Insurance Co. v. Hanson (1972), 7 Ill. App. 3d 678, 681, 288 N.E.2d 523.

Bova’s 11th and final argument is that plaintiff would have issued coverage if it had the opportunity to do so — and defendant’s liability is controlled by whether they would have. Relying on Country Mutual Insurance Co. v. Adams (1980), 85 Ill. App. 3d 501, 407 N.E.2d 103, Bova argues that if the negligence of the agent does not alter the risk the insurance company was willing to take, the agent’s negligence is not the cause of the insurer’s loss. However, Country Mutual is factually quite different from the case at bar. In Country Mutual the agent told the insured that his policy included and would cover a homemade trailer used in the insured’s business. Subsequently a loss occurred which involved the trailer. The question of whether the insurer would have accepted the additional risk of the trailer was viewed as a proper consideration of the jury. This is quite different from the situation here — where the issue was whether or not any policy had issued. Milwaukee Mutual never accepted a risk, so Bova cannot argue that his negligence did not alter that risk. Country Mutual is inapposite. The liability question was properly placed in the jury’s hands.

Except for the issue concerning the reference to the errors and omissions insurance, Bova’s arguments concern factual issues which, we believe, were properly presented to the jury. Our review of the record leads us to conclude that the jury’s verdict was within the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of De Kalb County is affirmed.

Affirmed.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE MILLS

text:
    HEATHER HENDERSON, a Minor, by Jill Hudspeth, Her Mother and Next Friend, et al., Plaintiffs-Appellants and Cross-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellee and Cross-Appellant.—HEATHER HENDERSON, a Minor, by Jill Hudspeth, Her Mother and Next Friend, et al., Plaintiffs-Appellees, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant.
    Fourth District
    Nos. 4—82—0254, 4—82—0289 cons.
    Opinion filed May 19, 1983.

      David V. Dorris, of Jerome Mirza and Associates, Ltd., of Bloomington, for Heather Henderson and Jill Hudspeth.

      George B. Gillespie, of Gillespie, Cadigan & Gillespie, of Springfield, for Illinois Central Gulf Railroad Company.
   JUSTICE MILLS

delivered the opinion of the court:

This appeal has two core issues.

One involves a discovery sanction.

The other, evidence of prior accidents.

We reverse and remand.

As this case involves no question of the sufficiency of the evidence establishing defendant’s liability, an extended recitation of the facts is not necessary. Suffice it to say that on January 13, 1977, there was a collision between an automobile occupied by the plaintiffs (a mother and her two-year-old daughter) and one of the defendant’s trains at a crossing in Hartsburg, Illinois. Both the mother and the daughter were injured.

They brought suit against the railroad and alleged, in part, that the railroad:

“Failed to provide adequate warning to the public of the approach of its trains although said crossing was an extra hazardous crossing due to the fact that the view of trains traveling upon the tracks of the defendant in a northerly direction by vehicles traveling in an easterly direction upon the County Road was obstructed, and further due to the fact that said crossing was heavily traveled by vehicular traffic; ***.”

At the trial, the plaintiffs presented evidence — including expert testimony — that the crossing was extra hazardous and required flashing signals for adequate protection. They also presented evidence of prior accidents at the crossing and the details of those accidents.

Objecting to the admission of the evidence concerning the prior accidents, the railroad argued that two of the accidents were dissimilar to the plaintiffs’ accident. The trial court overruled the railroad’s objection and allowed the evidence on the issue of notice to the railroad of the hazardous nature of the crossing.

In its defense, the railroad called its own expert who testified that the crossing was adequately protected. However, the railroad was denied, as a sanction for a discovery violation, the opportunity to call a second expert witness, Bernard Morris, an expert from the Illinois Commerce Commission.

The jury returned verdicts of $87,500 for the mother and $45,000 for the daughter. The railroad filed a post-trial motion alleging numerous trial errors and seeking a remittitur. The court reduced the verdict for the daughter to $22,500, but otherwise denied the railroad’s requested relief. Plaintiffs appealed from the remittitur and the railroad cross-appealed the denial of its post-trial motion. Because of our decision on two of the issues raised on the cross-appeal, we need not address the others, including the question of remittitur.

I

First, we hold that it was error to exclude the testimony of Bernard Morris.

There is no duty to supplement answers to interrogatories which are correct and complete when made. (Strope v. Chicago Transit Authority (1979), 71 Ill. App. 3d 987, 389 N.E.2d 1374.) All of the evidence below indicated that the railroad did not decide to call Morris as a witness until after plaintiffs’ September 4, 1981, request to supplement an interrogatory under Supreme Court Rule 213(e) (87 Ill. 2d R. 213(e)) and that the railroad promptly and completely replied to the January 22, 1982, Rule 213(e) request. While the railroad may have delayed the decision to make Morris a witness, this is not a discovery violation. Because a violation is a condition precedent to the imposition of a sanction, the railroad is entitled to a new trial where Morris will be allowed to testify. Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 392 N.E.2d 693.

II

Second, we find that it was also error to allow the plaintiffs to present details of the prior accidents that were dissimilar to the accident in this case.

The general rule regarding the admissibility of prior accidents was summarized by the court in Ray v. Cock Robin, Inc. (1973), 10 Ill. App. 3d 276, 282, 293 N.E.2d 483, 487:

“The law is well settled that evidence of prior accidents, occurring at the same place or with the same instrumentality, is competent, not for the purpose of showing independent acts of negligence, but for the limited purposes of showing that the common cause of such accidents was the unsafe condition or thing, and that frequency of such accidents tends to show knowledge of such condition.”

(See also Moore v. Bloomington, Decatur & Champaign R.R. Co. (1920), 295 Ill. 63, 128 N.E. 721; Smith v. City of Rock Island (1959), 22 Ill. App. 2d 389, 161 N.E.2d 369.) This rule has long been accepted in Illinois (see City of Taylorville v. Stafford (1902), 196 Ill. 288, 63 N.E. 624; City of Bloomington v. Legg (1894), 151 Ill. 9, 37 N.E. 696), and is also accepted in the overwhelming majority of foreign jurisdictions — both State and Federal. See Simon v. Town of Kennebunkport (Me. 1980), 417 A.2d 982, and cases cited therein.

What foundation must be laid to introduce evidence of prior accidents and whether details of those accidents may be introduced depend upon the purpose for which the evidence is being offered. If the evidence is being offered to show the existence of a particular danger or hazard, then a foundation must be laid establishing the similarity between the prior accidents and the present accident. The determining factor here is relevancy. Evidence of prior accidents is only admissible if it is relevant to the proponent’s case. (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929.) Evidence of prior dissimilar accidents is not relevant to the issue of whether a particular obstruction or hazard contributed to the present accident. Only similar accidents are relevant to show the existence of a particular danger. See Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241; Phillips v. Shell Oil Co. (1973), 13 Ill. App. 3d 512, 300 N.E.2d 771.

Furthermore, when the proponent is offering the evidence to show the existence of a particular danger, he may also introduce details of the prior accidents. This is because details are relevant to the issue of whether a particular danger existed.

If the evidence of prior accidents is being offered only to show the defendant’s notice of the generally hazardous nature of the accident site, then the proponent does not have to establish a foundation showing the similarity between the prior accidents and the present accident. (First National Bank v. Illinois Central Gulf R.R. Co. (1978), 62 Ill. App. 3d 36, 378 N.E.2d 1329.) Evidence of dissimilar prior accidents is relevant to the issue of whether the defendant knew the accident site was generally hazardous. See Warshaw v. Rockresorts, Inc. (1977), 57 Haw. 645, 562 P.2d 428; Hilts v. County of Solano (1968), 265 Cal. App. 2d 161, 71 Cal. Rptr. 275; Young v. Illinois Central Gulf R.R. Co. (5th Cir. 1980), 618 F.2d 332. Contra, State v. Fair (Ind. App. 1981), 423 N.E.2d 738; Christmas v. Seaboard Coastline R.R. Co. (Fla. App. 1974), 294 So. 2d 384.

The proponent may not, however, introduce details of the prior accidents when he is offering the evidence only to show the generally hazardous nature of the site. Those details are irrelevant; they unfairly prejudice the jury against the defendant, and their introduction is grounds for reversal.

This court recently decided a case with these exact theoretical underpinnings. In First National Bank, the plaintiff alleged that a specific obstruction — the morning sun — rendered a certain crossing hazardous during the early morning hours and contributed to the decedent’s accident. The sun allegedly prevented drivers approaching from the west from seeing the warning lights mounted atop the crossbucks at the crossing. The trial court allowed the plaintiff to admit evidence of one similar prior accident and five dissimilar prior accidents. The details of only the similar accident were admitted. Affirming the trial court, this court held that a proper foundation had been laid to enter evidence of the similar accident. This court also held that it was not error for the trial court to admit evidence of the dissimilar accidents because their details were not introduced and the fact that they occurred was relevant to show notice to the railroad that the townspeople believed the crossing was hazardous.

In sum, if the plaintiff alleges that a specific or particular danger exists, then he should be allowed to enter evidence of prior similar accidents and their details. He should not be allowed to enter any evidence concerning dissimilar accidents.

If the plaintiff alleges that the accident site is of a generally hazardous nature, he should be allowed to enter evidence of any prior accident-regardless of its similarity to the accident sub judice. He should not, however, be allowed to enter any evidence concerning the details of those accidents.

If the plaintiff alleges both the existence of a particular danger and the generally hazardous nature of the site, he should be allowed to enter evidence of both similar and dissimilar prior accidents but he should be allowed to enter the details of only the similar accidents. The relevancy of each prior accident should be challenged by either a proper pretrial motion or a timely objection and, of course, its relevancy must be determined by the trial judge.

In the case at bar, the plaintiffs pleaded both a particular danger and the generally hazardous nature of the railroad crossing. Therefore, the trial court correctly allowed them to enter evidence concerning prior similar and dissimilar accidents and the details of the similar accidents. The trial court, however, committed reversible error when it also allowed the plaintiffs to enter evidence of the details of the dissimilar accidents.

It should also be noted that defendant’s instruction attempting to limit the use of prior accidents was properly refused because it was misleading. (Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692.) The instructions stated that evidence of prior accidents is not admissible to show negligence. This is correct only insofar as it refers to negligence on a prior occasion. As the evidence is admissible to show that defendant was negligent in the present case, the instruction was properly refused.

Ill

Because we must reverse and remand for a new trial, we need not discuss the remaining issues at length. It is sufficient to note that the giving of special interrogatories is within the sound discretion of the trial judge (Albaugh v. Cooley (1981), 87 Ill. 2d 241, 429 N.E.2d 837) and that instructions which are not supported by the evidence need not be given. {Graves) The questions of the trial judge’s communication with the jury and the remittitur are moot, and we decline to add additional unnecessary pages to the volumes on the shelves.

Reversed and remanded.

WEBBER, P.J., and MILLER, J., concur.