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Whitman v. Prescott

FEBRUARY 6, 1967.




Appeal from the Circuit Court of Cook County; the Hon. GEORGE B. WEISS, Judge, presiding. Judgment affirmed.


The plaintiffs brought this action to recover for personal injuries and property damage which they sustained when the automobile driven by plaintiff, Helen Whitman, in which plaintiffs, Julia Osolinski, Myrtle Berry and Lottie Kaczor were passengers, collided with an automobile driven by the defendant, George Prescott. The jury trial resulted in a verdict of not guilty and the plaintiffs appeal from the judgment entered in favor of the defendant. No question was raised as to the pleadings.

On January 6, 1958, the plaintiff, Helen Whitman, picked up the other three plaintiffs, and taking the same route they used every day, was driving to the Automatic Electric Company in Northlake, Illinois, where they were employed. Helen Whitman testified that she was driving west on Grand Avenue in the second lane of the six-lane through street at about 20 to 25 miles per hour and when she was about 20 feet east of Nordica Avenue she glanced and saw the defendant's car going south on Nordica and expected him to stop for the through street. When she was about ten feet away, she said, she saw he wasn't going to stop and yelled, "He isn't stopping," applied her brakes, blew her horn, swerved to the left, and that the defendant's front left fender hit her right fender. She testified further that the defendant did not blow his horn or swerve his car to avoid the collision. The testimony of her three passengers and coplaintiffs was substantially the same.

The defendant, George Prescott, testifying under section 60 of the Civil Practice Act, said that he was on his way to work and knew that traffic on Nordica must stop before entering Grand Avenue which was a through street. He said that he was stopped several times on approaching Grand Avenue because cars in front of him were turning into it and that when traffic cleared he proceeded 15 feet into Grand Avenue where his engine stalled. He testified that he had just restarted his engine and that his car was standing still when the other car, which he saw shortly before the impact, struck his left bumper. He said the other car then swerved slightly to the left and came to a stop about ten feet away and that his car was not moved by the impact.

Plaintiffs contend that the misconduct of defendant's counsel so prejudiced the jury that they rendered a verdict clearly against the manifest weight of the evidence. They argue, and we agree, that where the question of liability is sufficiently close, as in the instant case, the trial must be conducted in an orderly manner so that the jury will not be improperly influenced. Bulleri v. Chicago Transit Authority, 41 Ill. App.2d 95, 190 N.E.2d 476, Owen v. Willett Truck Leasing Corp., 61 Ill. App.2d 395, 209 N.E.2d 868. Therefore errors in the course of the trial should be carefully scrutinized by the court.

We first consider plaintiffs' claim that defendant's attorney was guilty of misconduct in persistently asking objectionable questions of several witnesses with regard to injuries and ailments of Mrs. Berry not connected with the accident in question. Mrs. Berry testified that the collision on January 6th threw her into the windshield and that she was put under the care of Mrs. Whitman's doctor who was on the staff of the American Hospital. At that time she said that her whole right side and neck hurt and that she was confined to the hospital until January 27th, during which time she couldn't walk. She returned to work about March 17th, and was subsequently hospitalized in November of 1963, for, as stated in plaintiffs' brief, an unrelated condition.

We are of the opinion that no useful purpose would be served by detailing the many further charges. We have carefully reviewed the 900-page record of the nine-day trial and it appears to us that counsel for defendant was attempting to show through witnesses and exhibits that most of the injury claims by plaintiffs were fabricated. During the cross-examination of Mrs. Berry the trial judge ruled, on motion of plaintiffs, that her hospitalization for pneumonia and female illnesses were irrelevant and the jury was to disregard such evidence. The record is replete with bickering and wrangling by both counsel when defense counsel attempted to question Mrs. Berry and other witnesses about her many and various ailments both before and after the occurrence; counsel for the plaintiffs objecting that it was irrelevant and defense counsel insisting that it was either for the purpose of impeachment or for recollection of the witnesses.

During the last stages of the trial the defense called Dr. Arthur Jackson, who had treated Mrs. Berry for "nervousness" in February of 1961. Continued objections were made by plaintiffs' attorney on questions put to him on grounds of hearsay and irrelevancy and were sustained and the jury instructed to disregard the answers. Counsel for defendant insisted he was trying to refresh the recollection of the witness from hospital records and to connect his testimony with other evidence already given for purposes of impeachment. When the trial judge requested defense counsel to get to the point, counsel replied, "I am trying to ask those questions but counsel keeps interrupting and raising frivolous questions and I never get to communicate with the witness."

Plaintiffs' counsel objected to this statement by defense counsel that he was interrupting and raising frivolous questions. A colloquy then took place between the court and counsel in chambers where counsel of plaintiffs moved for a mistrial. After much discussion the court stated that at that stage of the case he was reluctant to grant the motion, but he thought that the only way to settle this dispute was to grant a mistrial unless counsel got together. The following exchange between counsel then occurred:

Mr. Hutul: I don't know whether there is any way it can be settled unless he apologizes in open court and you instruct the jury that it was not frivolous.

Mr. Kaye: I cannot do that.

Mr. Hutul: I will move that this court instruct the jury that such a remark is not in keeping with proper court conduct.

Mr. Kaye: All right. I will go out there and withdraw the remark I made.

The colloquy continued and then counsel for plaintiffs stated the ...

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