Appeal from the Superior Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding. Order reversed and cause remanded
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
This case is before us on a petition for leave to appeal from an order of the Superior Court of Cook County entered on April 24, 1963, granting a new trial to the plaintiff Ella Louise Panelle. The transcript of the post-trial motion showed that the court considered all the assignments of error enumerated by the plaintiff and granted a new trial solely upon the ground that he understood counsel for the defendant, CTA, in his address to the jury to make remarks to the effect that "there would not be enough money collected in a year to pay out the claims in a month." The judge commented "there is no room in final argument for inability of the defendant to pay, or other extraneous matters on claims pending outside, . . ."
The remarks actually made by counsel for the CTA are as follows:
"Now, let me say further that if we, a municipal corporation, cannot have a trial on the law and the evidence, ladies and gentlemen, then aside from the aspects of what it does to our judicial system, I want to say this. That if we cannot decide what cases must go to be decided by a jury and bring in what evidence we have and expect that case to be decided on the law and the evidence, if we are going to be required to pay every claim made against our company whether we think it is justified or not, if we don't have the right to go to a jury of 12 people who will decide the case on the law and the evidence, then I will tell you frankly, there isn't enough money collected in a year that we would have to pay out in claims in a month."
Objection was made to these remarks of counsel and the trial court sustained the objection.
The suit arose out of a bus-car collision. The plaintiff was driving on 42nd Street in a westerly direction. Defendant's bus was proceeding in a northward direction on Indiana Avenue. Indiana Avenue was a through street; 42nd Street was not. The collision occurred somewhere near the middle of the intersection with the bus striking the plaintiff's car in the center or in the left side rear. There was conflicting evidence as to whether the plaintiff stopped at the stop sign and as to whether the bus was stopped and discharging passengers at the time the plaintiff began to proceed into the intersection. The trial court felt that the case was a close one, and we, also, believe that the determination of the case depended upon whether the jury believed the CTA's account of the accident or the plaintiff's.
It is most important where there is testimony to sustain a verdict for either party and the case depends substantially upon the credibility of the witnesses, that the issues should be determined by an impartial jury. Appel v. Chicago City R. Co., 259 Ill. 561, 568, 102 N.E. 1021 (1913); Bulleri v. Chicago Transit Authority, 41 Ill. App.2d 95, 100, 190 N.E.2d 476 (1963). The rule applicable to this case was well stated in the Appel case at 567:
". . . Where objections made to improper argument are sustained, counsel is corrected and the jury are instructed to disregard it, the improper argument cannot usually be made the basis of reversal. But upon a motion for a new trial the question still remains whether the defeated party, in view of the whole record, has had a fair trial, and this question is committed to the discretion of the trial court, not to its absolute discretion but to its judicial discretion."
See, also, Crutchfield v. Meyer, 414 Ill. 210, 214-215, 111 N.E.2d 142 (1953); 3A Nichols Illinois Civil Practice (1961), §§ 3553, 3554, p 206.
The court in this case was of the belief that the statements of counsel led the jury to believe that the CTA did not have sufficient funds to pay its just debts. If this was the import of the statement, it was, of course, improper. Eizerman v. Behn, 9 Ill. App.2d 263, 285, 132 N.E.2d 788 (1956); 3A Nichols Illinois Civil Practice (1961) § 3565, p 213.
We do not believe that the jury could have reasonably drawn such a conclusion upon hearing these statements. Counsel merely stated that the CTA would go broke if it paid all claims regardless of merit. The only inference which one might reasonably have drawn would be that, in counsel's opinion, plaintiff's claim had no merit. This inference would arise from the evidence in record and not from any assumed facts. As the court stated in Mrdalj v. Public Service Co. of Northern Illinois, 308 Ill. App. 424, 431, 31 N.E.2d 978 (1941):
"`. . . However it should be borne in mind that it is the presumption of law that jurors are intelligent, honest, fearless and just. Courts are not justified in assuming that the mind of the jury is of such plastic and unreliable material as to at any unjustified word of debate neglect the instructions, abandon the evidence and disregard their oaths.'"
Going beyond this one point, the record discloses that the trial court kept a firm grip over the proceedings and carefully ruled on the admission of evidence. The plaintiff has complained that the testimony of Dr. Proffitt, who treated the plaintiff for a knee injury seven months prior to the accident at issue, and who stated that a paralysis of the left leg, which plaintiff had suffered during her fall, was not due to any organic problem at that time, but that the paralysis was the result of a hysteria or a fear type complex, prejudiced the plaintiff's case because it inferred that she was subject to hysteria.
Plaintiff, also, implies that the testimony of Dr. Ennis, who performed an hysterectomy six months following the accident which caused a spontaneous premature delivery of a viable fetus, and who testified that the hysterectomy was necessary due to the presence of a fibroid tumor, which could not have been caused by an automobile ...