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Flewellen v. Atkins

SEPTEMBER 24, 1968.

CLARA FLEWELLEN, PLAINTIFF-APPELLEE,

v.

MAX ATKINS, ET AL., D/B/A STATE AND MADISON PROPERTY, A PARTNERSHIP, AND UNITED BUILDING CONSTRUCTION CO., A PARTNERSHIP, DEFENDANTS-APPELLANTS. MAX ATKINS, ET AL., D/B/A STATE AND MADISON PROPERTY, A PARTNERSHIP, THIRD PARTY DEFENDANT-APPELLEE,

v.

UNITED BUILDING CONSTRUCTION CO., A PARTNERSHIP, THIRD PARTY DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. NORMAN C. BARRY, Judge, presiding. Judgments reversed and causes remanded.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

ON REHEARING

The plaintiff, Clara Flewellen, joined the defendants, Max Atkins, Herman Atkins, Ben Atkins and Alvin Oken, d/b/a State & Madison Property Co., a copartnership (hereinafter referred to as State & Madison Property Co.) and United Building Construction Co., a copartnership, in her suit for personal injuries arising from alleged common-law negligence. Thereafter, State & Madison Property Co., a copartnership, filed a third-party complaint against United Building Construction Co., a copartnership, alleging a right to indemnification arising from implied warranty doctrines or active-passive negligence rules. Pursuant to stipulation, the trial court severed the third-party complaint from the original cause of action, which was being tried by a jury. The jury returned a verdict in favor of the plaintiff, Clara Flewellen, and against all defendants, assessing the damages at $3,500 and costs. Judgment was entered upon this verdict.

As to the third-party action, both parties waived a jury. After considering the evidence, the trial court found for the third-party plaintiff, State & Madison Property Co., and against the third-party defendant, United Building Construction Co., in the amount of $3,500 and costs, entering judgment accordingly.

All defendants appeal from the judgment in favor of the plaintiff, Clara Flewellen, and against them in the amount of $3,500 and costs, and from the order of the trial court denying their post-trial motions for judgment notwithstanding the verdict and for a new trial. In addition, the third-party defendant, United Building Construction Co., appeals from the judgment rendered in favor of the third-party plaintiff, State & Madison Property Co., in the third-party action.

At the trial the plaintiff testified that the personal injury occurred on July 23, 1958, when she was on her way to work. She had left the Monroe Street subway station in downtown Chicago and was walking north, approaching the intersection of State and Madison Streets on the west side of State Street, when she was struck on the back of the head, left side, by some object. When so struck, she testified that she was approximately 15 to 20 feet from the southwest corner of State and Madison Streets. She fell to the ground and was assisted to her feet by an unidentified man who showed her the object which had hit her, a 2" x 2" piece of gray stone. Neither the stone nor the unidentified man was produced at the trial.

The plaintiff went on to mention that shortly after the accident she noticed it was 6:18 a.m. Testimony concerning compensatory damages concluded her statements on direct examination. The defendants stated that they had no questions of the plaintiff at this time, subject to her recall under section 60 of the Civil Practice Act. Whereupon, plaintiff's counsel said, "The plaintiff rests her case, Your Honor."

The defendants then entered motions for a directed verdict and plaintiff's counsel asked the court for leave to reopen for the purpose of additional proofs; i.e., answers by the defendants to written interrogatories propounded by the plaintiff. After returning from chambers, where opposing attorneys had presented oral arguments in support of their motions, the trial court refused to grant leave to the plaintiff to reopen her case and refused the defendants' motions for a directed verdict. Thereafter, the defendants offered no evidence but rather rested and renewed their motions for a directed verdict, which were refused. Closing arguments to the jury by all sides followed.

On appeal, the defendants contend: (1) the trial court erred in refusing to grant their motions for a directed verdict at the close of the plaintiff's case and again at the close of all the evidence; and (2) the trial court erred in refusing to grant their post-trial motions for a new trial due to prejudicial comments by the plaintiff's counsel in his closing argument to the jury.

The plaintiff's case rests solely upon circumstantial evidence. Her theory of liability is alleged to flow from these evidentiary facts: (1) she was struck on the back of the head by a piece of stone; (2) while walking on a public sidewalk approximately 15 to 20 feet from the intersection of State and Madison Streets; (3) the defendant construction partnership was repairing the roof of the defendant building manager partnership at the time of the occurrence, which property abutted the public sidewalk where the plaintiff was struck. Therefore, the defendants are guilty of concurrent negligence. The defendants argue that the plaintiff failed to prove her prima facie case because she never, in her testimony, mentioned them, thereby failing to show that her injury was proximately caused by their alleged acts of negligence. Hence, the trial court erred in failing to grant their motions for a directed verdict.

The standard to be applied by the trial court in evaluating the evidence so as to pass upon motions for directed verdicts has always been an elusive creature in the law. Recently, the Illinois Supreme Court in Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513 (1967), recognized this problem and solved it by enunciating one standard for use in Illinois:

". . . In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

Therefore, this court's duty is to determine if all the evidence, when viewed most favorably to the plaintiff, so overwhelmingly favors the defendants that no verdict for the plaintiff based on that evidence could ever stand. Since the defendants offered no evidence at the trial, only the plaintiff's evidence will be considered, along with remarks by counsel for the defendants.

It is true that the plaintiff never mentioned the defendants specifically, by name, in her testimony. However, the attorney for State & Madison Property Co., mentioned in his opening statement to the jury: "We agree with what plaintiff's attorney has told you that work was going on there, but how the injury occurred we have no knowledge. We believe that the evidence will show that the State & Madison Property Co. had no control over the workmen ...


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