Appeal from the Circuit Court of Kane county; the Hon. CHARLES
G. SEIDEL, Judge, presiding. Affirmed.
Rehearing denied March 30, 1961.
Plaintiff sued for personal injuries and recovered $20,000.00. Defendant assigns the following errors: (1) Striking of evidence going to the issue of proximate cause; (2) Plaintiff's `per diem' argument; (3) The use of a chart in connection therewith; (4) Prejudicial statements in argument; and (5) Instructions. We will discuss them in that order with particular emphasis on the first three.
The proximate cause issue is somewhat involved. During the cross-examination of plaintiff, defendant elicited admissions that he had been involved in automobile accidents both before and after the occurrence sued on. This occurrence took place on April 16, 1956 while plaintiff was driving to work. The evidence showed that after crossing an intersection defendant had crashed into him from the rear resulting in severe "whip-lash" injuries. The cross-examination, to which plaintiff made timely objection, is as follows:
Q. Now, around the first of March you had an accident, is that correct, before this one?
The Court: Are you going to connect it up? Defendant's Counsel: Yes, I am.
I was stopped at a sign. I was bumped in the rear by a little Henry J pushed my trunk handle in and that was it. The only damage was around the handle of the trunk. I could have pounded that out myself, but still left the imprint of the handle. I pounded some of it.
Q. Now, following this accident, and directing your attention to April, 1957, were you involved in an accident on that occasion on Route 62 and Busse Highway?
The Court: Connect it up? Defendant's Counsel: Sure I am, your honor.
A. Yes. On that occasion my front headlight was struck. . . .
Q. After this accident happened, didn't an accident in your home happen where you fell on the rug and landed on your back? A. No sir.
Defendant offered no evidence to "connect" these accidents with plaintiff's injury, and instead argues, that when viewed in connection with plaintiff's own medical testimony, there is a sufficient connection shown, that even standing alone, there is a sufficient relationship, and that in any event, no duty devolved on him "to connect it up," because the burden of proof on the issue of proximate cause is always with the plaintiff and never shifts. The trial court disagreed, struck the testimony and instructed the jury to disregard it. Defendant says that in doing so, the court was improperly shifting the burden of proof to his shoulders and in effect, was directing a verdict against him on the issue of proximate cause, that is, that the court was telling the jury that these accidents had nothing to do with plaintiff's injuries and, by the same token, that plaintiff had, as a matter of law, shown a causal relationship between his injuries and the accident sued on. Defendant also argues that this redounded to the benefit of plaintiff by heightening the credibility of his medical witnesses.
[1-4] The general rule is that the burden of proof rests on the party who has the affirmative of the issue, as determined by the pleadings, and the usual test employed to determine on which side the burden of proof lies, is to ascertain which party would be entitled to a verdict if no evidence were offered. While the burden of going forward with the evidence may shift from party to party, the burden of proof never shifts during the course of the trial and remains on the party asserting the affirmative of the issue. Noyes v. Gold, 310 Ill. App. 1, 34 N.E.2d 1. True, the burden of connecting up these `before and after' occurrences, as either contributing (before), or intervening (after) causes, devolved on defendant, but this is not shifting the burden of proof. To phrase it another way, because plaintiff did not have a duty to negate affirmatively as part of his case the causal relationship between these `before and after' occurrences and the one he sued on, is not saying that plaintiff was relieved of the burden of demonstrating that his injuries were proximately caused by the occurrence of April 16. In like measure, the fact that plaintiff bore this burden successfully does not mean that it then shifted. It did not. The burden of proof is not cast on a defendant in giving him the right of defending himself against a prima facie case, if by burden of proof the defendant means that the plaintiff was relieved from establishing his case at the onset.
In Hederick v. Uptown Safe Deposit Company, 21 Ill. App.2d 515, 159 N.E.2d 58, there is a quotation from Thayer's Preliminary Treatise on Evidence, 378, which neatly summarizes the situation:
"We see that the burden of going forward with the evidence may shift often from side to side; while the duty of establishing his proposition is always with the actor and never shifts."
And as pointed out by Professor Edward W. Cleary, Handbook of Illinois Evidence (1956), the burden of proof actually has two aspects (page 70): "(1) the burden of producing evidence as to a particular matter, and (2) the burden of persuading the trier of fact as to the existence thereof. Egbers v. Egbers, 177 Ill. 82, 52 N.E. 285 (1898)." He further states: "The burden of producing evidence may shift from party to party as the case progresses, but the burden of persuasion never shifts."
Proximate cause was a part of plaintiff's case. It was as indispensable as the elements of defendant's negligence, plaintiff's freedom therefrom, and damage. Without it, plaintiff's action would have failed. But when he has borne the burden of proof and established the material elements necessary to make out a case, it is then the defendant's right, but certainly not his duty to put on his defense. This is not shifting the burden of proof. One cannot be said to have a burden if one may pick it up or not as he pleases. Obviously if there is evidence negative of causation, a defendant should show it, but the law in according him the privilege of going forward in no wise shifts to him the burden of proof as the law knows that phrase. In Behnke v. President of the Board of Trustees, 366 Ill. 516, 9 N.E.2d 232, it is stated:
"The phrase `burden of proof' is a much abused term because it has been the tendency of courts and lawyers to use the phrase loosely to mean either (1) the need of establishing the existence of a fact or facts by evidence which preponderates to a legally determined degree; or (2) the task resting upon a party litigant, at any particular time during the trial, to create a prima facie case in his own favor or to destroy one when created by the opposing litigant. `Burden of Proof' should be restricted to the first situation, and burden of going forward with evidence is a more exact expression to use in denominating the second situation."
Defendant argues that these `before and after' occurrences should have been left in for consideration by the jury; "that where there could be more than one cause of the damage it is the plaintiff's burden to prove which one caused it"; "that where two causes could be the cause of the damage, plaintiff had the burden of proving which one caused it"; "That defendant has the right to elicit, upon cross-examination, other possible causes, and upon eliciting such evidence to have all the evidence as to such causes submitted to the jury." These would be correct statements of the law, were it not for the fact that the evidence elicited on this cross-examination does not establish even remotely, a possible "cause" or "causes" of plaintiff's injuries. No jury could reasonably infer from these incidents that one or both of them were related to the injuries plaintiff sued on. In short, as to both, there was no nexus. To elevate testimony that sometime before the rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before the onset of a more serious lower-back complaint, his front head-light was struck, to the status of contributing or intervening causes, suitable for submission to triers of the fact, is to misread standards of relevancy required as pre-conditions of admissibility. That this requirement devolves on the defendant to the same extent as on plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it. It is a question of relevancy, pure and simple.
Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by pleadings. (See 1 Wigmore on Evidence, 3d Ed., Sec. 2.) That intervening and contributory causes are material to the issue of proximate cause is implicit in the very nature of things, and taken as a matter of course in actions of this kind. They are material propositions that may be proved. The question here is whether the evidentiary facts offered by defendant did prove either one or both of them. Relevancy has been defined as a tendency to establish a fact in controversy, or to render a proposition in issue more or less probable. To be probable, evidence must be viewed in the light of logic, experience and accepted assumptions concerning human behavior. We think on all these counts, viewing the evidence as a whole, reading text in context, that the cross-examination failed to produce evidence that had a tendency to establish any fact which would render plaintiff's proof of proximate cause less probable.
Nor did the court's action invade the province of the jury, as defendant contends, by directing a verdict or by lending a greater credence to the testimony of the plaintiff and his medical witnesses. Matters improperly in evidence should be stricken. If some hardship may attach to that act, the one who induced such action has little grounds for complaint. And this possibility is exactly what occasioned the Court's insistence that the evidence suggested by the initial questions be "connected up." In each situation, examining counsel gave his assurance that it would be. When he failed to make such examination partake of the relevant he surely cannot complain. He was put on guard that such action would be taken if he failed. Such action was implicit in the query from the bench: "are you going to connect it up?" Failure at the very least would occasion an instruction to disregard. Surely in this context, when warned in advance, his present alarums cannot be seriously considered.
We do not mean to imply that the cross-examination was improper, or beyond the scope of direct. It was not. It was directed towards a material issue. The trouble is that while it started it never arrived. And when risk of damage to one party's case becomes apparent, from a line of questioning that up to then lacks the probability of tending to prove or disprove anything material, the court should obtain an assurance, if sought, that relevancy will be established. Granger v. Turley, 20 Ill. App.2d 488, 156 N.E.2d 610 (1959). If the assurance turns out to be an empty gesture, that which has been shown should be stricken to remove what lingering impact it may have. It is no answer to say, that in doing just that, possible attendant psychological harm may ensue to the assurer's case. We doubt that it does, but if it does, he has no cause for complaint.
A perfect example involves the slip on the rug. Seemingly no prejudice would ensue, for the negative answer ended the inquiry. Notwithstanding, the "slip" remained, hanging in the courtroom air. To the untrained ear it might seem that this incident may have had something to do with plaintiff's injuries. At least plaintiff's counsel thought so, and thinking so, it was his right, indeed his duty, to move to strike. Relief was accorded in striking it and instructing the jury to disregard it. Defendant does not complain of this action, and we merely recite it for the purpose of showing that what started out as valid cross-examination ended up by injecting an irrelevant, improper, and possibly prejudicial fact into the case. As to this testimony, such is abundantly clear, and upon analysis, and to the same extent, and in like vein, is the testimony as to prior and subsequent accidents.
We next turn to defendant's contention that plaintiff's opening argument was prejudicial. While the argument was not novel in the sense that the trial bar would be less than astounded, it is novel so far as Appellate Courts in this State are concerned. We refer to what we shall call, the "per diem argument" for pain and suffering.
Defendant apparently sensed that this type of argument was about to be made and prior to its advent objected "if that is his plan ." Counsel for plaintiff responded:
"I don't make any secret about my plans as far as the closing argument is concerned to the Jury. . . . I do plan to use, and I believe I should be entitled to, not a blackboard, but a plain white sheet of paper which is completely blank, and mark it as an exhibit for identification so it can become a part of the record in the case, for purely demonstrative purposes and for illustration and properly demonstrate the question of damages to the Jury. . . . Anything I write thereon, either figures or number, become a part of the record, but the use is purely for the purpose of demonstrating to the Jury and in aiding in interpreting the difficult questions and very complicated questions of damages in this case."
Defendant's request that the Court instruct plaintiff's counsel not to use a chart to write on and not to argue damages on an hourly, daily, weekly, monthly, or yearly basis, for pain and suffering was denied. It was understood, and indeed, stated by counsel that any chart used in the computation of pain and suffering, while marked as an exhibit, would not go to the jury, and would be used solely for demonstrative purposes, "as a skeleton model that we used in the case," and would be included in the record on appeal. It has been. We have inspected it and it looks like this:
1. Nature and Extent $10,000.00 $50,140.90 2. Pain and Suffering April 16, 1956 11,680 hours 11,680.10 510 days 5,100.00 3. Future Pain 8,760.00 4. Hospital and Medical $873.00 $415.90 1,288.90 5. Lost Earnings $ 2,432.00 2,880.00 5,312.00 __________ 6. ...