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Marut v. Costello

DECEMBER 1, 1964.




Appeal from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding. Judgment reversed and cause remanded with directions.


This appeal is from a judgment entered in the Circuit Court of Cook County, Illinois, February 21, 1963, on a jury verdict finding for the defendants-appellees in plaintiff-appellant's suit for damages resulting from injuries sustained on appellees' premises.

The central issue which the appellant raises before this court is whether the constant references to what she claims are unrelated injuries and illnesses, and questions concerning her mental condition deprived her of a fair trial.

In July of 1958 the appellant was working as a waitress in the Blackhawk Restaurant in Chicago. On that date she slipped while at work, sustaining a severe injury to her neck and shoulder, the treatment of which required several operations. Dr. Robert McElvenny of Chicago treated the appellant for both this injury and the injury presently before this court. She was still recuperating from this first fall almost two years later on March 3, 1960, when she claims she incurred the injury on which this suit is based.

According to the appellant, she was, on March 3, 1960 a tenant in the first floor apartment of a building located at 3939 North Janssen Avenue, Chicago, and owned by the defendants. On that date, shortly after noon, a neighbor came to the appellant's apartment and asked her to look after her baby while she went to the store. The neighbor gave the appellant the back door key to her apartment, and about 20 minutes later, the appellant went upstairs to look in on the baby, using the open back stairway of the apartment building. The appellant testified at the trial that when she went to look at the baby, she was wearing laced oxford nonskid work shoes which she had worn as a waitress, and that while climbing the stairs, she observed that it was icy and snowy between the first floor landing where she lived and the second floor landing where the neighbor lived. She claims there was an overhanging gutter in that area, which gutter was cracked or rusted so that water leaked from the gutter and froze on the stairs and landing when the weather was cold enough. There was testimony from the appellant and from others who had lived in the building that the janitor had not cleaned off the back stairway for quite some time.

The appellant testified that as she was coming back down the stairs, after having looked in on the baby, she slipped and fell, thereby injuring her back. It is for the injuries resulting from this fall that the appellant brought her suit in the court below.

The appellees set up several defenses to the complaint. They denied any negligence and alleged that the appellant was contributorily negligent. They denied that she ever fell on the back stairway and claim that the injury of which she complains was caused by the fall which she incurred while working as a waitress at the Blackhawk Restaurant almost two years before.

At the trial, the appellees adduced evidence from several residents of the apartment building that the back stairway was kept clean of ice and snow during the period the appellant claims she fell. The janitor of the building testified that he particularly remembered the day because it was his son's birthday, and that he recalled cleaning the stairs that day.

During the trial, the appellees cross-examined Mrs. Marut and Dr. McElvenny at some length about the fall which took place at the Blackhawk Restaurant in 1958, and the resulting injuries. The only evidence the appellees brought out on this matter was in these cross-examinations. On her cross-examination the appellant denied that she ever complained of pains in her low back before March of 1960. Dr. McElvenny testified that there was no connection between the fall at the Blackhawk Restaurant and the injury to the lower back of which the appellant complains here.

On these cross-examinations, the appellees brought into evidence the record of the Industrial Commission, which heard the appellant's claim relating to her fall at the restaurant. These hearings took place both before and after the accident complained of here. In testimony before the Commission taken on March 7, 1960, four days after the accident, her doctor represented to the Commission that in his opinion the appellant would be unable to return to work as a waitress due to the injury she sustained from her fall at the Blackhawk Restaurant in 1958 The appellant had testified before the Commission a few days before her second accident to the effect that her physical condition was not at all good. This testimony was used by the appellees for the purpose of discrediting some or all of the testimony given by Mrs. Marut and her doctor.

The basic point complained of here, is that the attorney for the appellees was permitted, over objection, to question the appellant and her doctor about a possible connection between the injury to the upper back resulting from the fall at the Blackhawk Restaurant, and the injury to the base of her spine which the appellant claims resulted from the fall down the back stairs of the building owned by the appellees. The appellant does not deny that the appellees had a right to cross-examine concerning the prior accident if they can show some relationship between the two injuries. When the appellant objected at the trial that a proper basis had not been laid for the cross-examination concerning the previous accident, the attorney for the appellees said that he would connect the first injury to the latter. The appellant claims that this was never done, and therefore, the testimony pertaining to the earlier fall should have been stricken and the jury instructed to disregard such matters.

The appellant also complains of references to her mental state made during the cross-examination, claiming that such material was totally irrelevant and should not have been permitted. The appellees respond to these claims, saying that both the appellant and her doctor had testified at the trial as to her previous medical history, and therefore, the appellees were entitled to cross-examine these witnesses in depth about all factors relating to these matters. They also claim that aside from the matter being raised on direct examination, the material concerning the appellant's prior condition of health as testified to before the Industrial Commission was relevant to rebut and impeach the claim that the appellant was in fairly good health before her second fall and would have been able to return to work shortly after March 3, 1960, but for her second accident. In addition, the appellees say that the disputed cross-examination was relevant to show that the appellant's claimed total disability was not a proper claim, and that, in fact, she was on March 3, 1960, suffering from a permanent disability.

As further grounds for admitting this material, it is claimed that the evidence before the Industrial Commission shows the appellant's physical condition to have been so weak that it establishes a case of her contributory negligence in undertaking to negotiate stairs which she claims were icy and snowy.

We hold that evidence was improperly before the jury in that there was no testimony tending to connect the two injuries. The jury should have been instructed to disregard certain portions of the testimony of the appellant and of her doctor.


[2-5] During the course of direct examination, the appellant gave the following testimony:

"Q. Mary, did you injure your neck in the year 1958?

"A. Yes, sir, I did.

"Q. Where did that happen?

"A. At the Blackhawk Restaurant.

"Q. Were you employed at the time?

"A. I was.

"Q. Do you recall the exact date of that occurrence?

"A. Offhand, no. Somewhere in July.

"Q. At the time of injuring your neck in that occurrence, did you sustain any injuries to the low back area at the time?

"A. No, sir.

"Q. Do you know the name of the doctor that took care of you for the injuries to your neck?

"A. Dr. McElvenny. Robert McElvenny."

This is the testimony the appellant gave on direct examination concerning the fall she took at the Blackhawk Restaurant. It seems clear from the pleadings in this case that the appellees were going to try to prove that the injuries the appellant claimed she suffered when she fell down the back stairs did not result from that fall, but were the result of the fall she took at the Blackhawk Restaurant almost two years before. As the trial progressed, this is exactly what happened. The appellant was, therefore, trying to protect herself by bringing out the fact of the previous accident before the appellees could do so on cross-examination. Had they waited until the 1958 verdict was raised on cross-examination, it might appear to the jury that the appellant was trying to conceal it. The strategy used by the appellant is a common one, and we do not feel that in protecting herself she waived the right to insist that the injuries be connected to one another by acceptable evidence. The appellees, nevertheless, claim that the cross-examination was appropriate as being within the scope of topics covered on direct examination and, in support of this theory, they cite the case of Muscarello v. Peterson, 20 Ill.2d 548, 170 N.E.2d 564 (1960). In that case the Supreme Court said:

"The rule is, of course, a familiar one that cross-examination of a witness should be confined to matters brought out upon direct examination. (Hansen v. Miller, 145 Ill. 538.) But in determining the scope of the `matter' testified to on direct examination the rule is not to be given a narrow or technical application. (West Chicago St. R.R. Co. v. Reddy, 69 Ill. App. 53.)"

We are not in disagreement with that rule. The purpose of cross-examination is to get at the truth, and too strict a limit on the scope of cross-examination will hamper rather than help to achieve this end. We do, however, feel that the appellees have misapplied this rule in their argument, for this rule, in our opinion, assumes that the direct testimony and the cross-examination will be on matter relevant to the case at bar. We feel that Mrs. Marut's first accident has not been shown by the appellees to be relevant on the question of causation of the injury of which she complains here.

There is an Illinois case quite similar to the case at bar. In Caley v. Manicke, 29 Ill. App.2d 323, 173 N.E.2d 209, (1961) reversed on nonevidentiary grounds 24 Ill.2d 390, 182 N.E.2d 206, (1961), cited by both sides in this case, the court dealt with a question of the relevancy of prior accidents. In laying down guidelines for dealing with this problem, the court said:

"Relevancy described 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 feel that the cross-examination elicited by the attorney for the appellees failed to render the proposition in issue more or less probable. We find nothing in the record from which a legitimate tendency to prove or disprove the proposition that the appellant's injuries were caused by a prior accident can be drawn. The claim that the injury was caused by a prior accident is an affirmative defense and the appellees had the burden of proof on this point. Caley v. Manicke (supra).

To show how the appellees failed to elicit evidence to prove their claim, we quote from the cross-examination of the appellant, Mary Marut:

"Q. Isn't it a fact, ma'am, that before the Industrial Commission, that you testified that you were completely incapacitated at that time?

"A. At that time, yes, but I was gradually getting better. There's miracles in everything, and I wish to God I had a miracle in my back.

"Q. We can appreciate that, Mrs. Marut.

"A. Yes, I wish.

"Q. We can appreciate that. Now, Mrs. Marut, you were having trouble with your arms?

"A. Not with my arms. With my arm.

"Q. With your arm?

"A. That's right.

"Q. And you were having trouble —

"A. So therefore they took the ...

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