Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
A. BARTH, Judge, presiding. Affirmed in part and remanded in
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 6, 1969.
This is an appeal from a summary judgment in favor of the plaintiff on the issue of liability in an automobile collision involving an automobile driven by plaintiff and a truck operated by defendant's employee. The defendant also appeals from the judgment entered on the jury's verdict of $90,000 in favor of the plaintiff. No questions are raised on the pleadings.
Two lawsuits were commenced as a result of the collision of a truck owned by defendant, Coca-Cola, with an automobile operated by plaintiff, Richard A. Lange. Coca-Cola sued Lange for property damage to its truck and Lange sued Coca-Cola for personal injuries and for property damage to his automobile. The two causes were not consolidated for trial. Coca-Cola's suit against Lange was tried without a jury and resulted in a judgment of not guilty in favor of Lange. This judgment was affirmed on appeal. When Lange's suit against Coca-Cola was called for trial Lange moved for summary judgment on the issue of liability on the ground that this issue had been determined in Coca-Cola's property damage suit and was binding on the parties in Lange's action for personal injuries. The trial court granted the motion and entered judgment in favor of Lange against Coca-Cola on the issue of liability.
The opinion handed down by the Appellate Court in Coca-Cola Bottling Company of Chicago, Inc. v. Lange, 80 Ill. App.2d 100, 224 N.E.2d 628 (abstract), the property damage action brought by Coca-Cola against Lange, reveals the following occurred:
"In the late afternoon of March 7, 1962, . . . [Coca-Cola's] truck was travelling in an eastward direction on Huntley Road . . . in Algonquin, Illinois. . . . [Lange] was driving his auto in the opposite direction on the same road. It was snowing at that time and the surface of the road was completely covered. . . .
". . . [Lange] said that: he was travelling at a rate of speed of from 15 to 20 miles per hour; it was snowing and the visibility was very poor; there had been an accumulation of snow for the last week or so; he was driving as close to the snowbank on his right as he could; he was unable to say whether or not he was over the center line because the road was completely covered with snow; the driver's door of his car was hit by the side of the truck; the door was completely demolished; the front of the car was not damaged; he did not remember anything after the impact, and someone took him to a hospital.
"The driver of . . . [Coca-Cola's] truck testified that: he was driving about 20 miles per hour and was in his proper lane; when he noticed . . . [Lange's] car coming toward him he veered his truck to the right, but that . . . [Lange's] auto struck him at a time when . . . [Lange's] car was about 4 or 5 feet into the eastbound lane; the road was covered with snow so he could not see the center line; the truck was damaged on the left side; . . . [Lange's] auto was damaged on the left-front side, and that the truck came to a stop facing in a southeasterly direction."
It is the contention of the defendant Coca-Cola that plaintiff was not entitled to a summary judgment on the issue of liability. It is argued that a suit for injury to the person and a separate suit for damage to property are two distinct causes of action even where the injury and damage were caused by the same negligent act. The defendant stresses that because the suit by Coca-Cola against Lange and Lange's action against Coca-Cola involve separate causes of action, res judicata is not involved. Instead, estoppel by verdict applies. However, before this latter doctrine may be used, the defendant maintains, the controlling issue material to the determination of both causes must have been raised and determined in the former litigation. The defendant points out that there were no specific findings in the prior suit and in the absence of such findings it does not conclusively appear that the mutual issues of fact in the two law suits were decided in Lange's favor.
In Smith v. Bishop, 26 Ill.2d 434, 187 N.E.2d 217, relied on heavily by the defendant, the Supreme Court laid down the following general rules as to when the doctrine of estoppel by verdict applies:
"When the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. Where some controlling fact or question material to the determination of both causes had been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. . . . [W]here the subsequent litigation is upon a different claim or cause of action, the determination is not conclusive unless the precise question in controversy had been raised and determined in the former litigation."
26 Ill.2d 434, 436-37, 187 N.E.2d 217. In the Smith case the Supreme Court reversed a summary judgment holding that there was no identity of parties and therefore, the doctrine of estoppel by verdict did not apply.
In support of his motion for summary judgment, Lange's attorney filed a verified affidavit which stated that the lawsuit arose out of a collision; that the sole question to be decided in the lawsuit was which party crossed the center line of Huntley Road; and that the two lawsuits involved the same questions of fact with the sole exception being the amount of damage sustained by the respective parties. No counteraffidavit was filed by Coca-Cola.
It is undisputed that the parties to both lawsuits are identical and that the same occurrence is involved in both. The defendant argues, however, that in its suit against Lange, it had the burden of proving: (1) it was free of contributory negligence; (2) Lange was negligent; (3) Coca-Cola's truck was damaged; and (4) Lange's negligence was the proximate cause of that damage. If Coca-Cola failed to prove any one of these issues the judgment would have to be in favor of Lange. In his suit against Coca-Cola Lange has the burden of proving: (1) Lange was free from contributory negligence; (2) Coca-Cola was guilty of negligence; (3) Lange was injured; and (4) Coca-Cola's negligence was the proximate cause of those injuries. Consequently the defendant says that if the judgment in Coca-Cola's property damage suit was based on Coca-Cola's failure to prove either that its truck was damaged or that Lange's negligence was the proximate cause of that damage, then the judgment in favor of Lange would not be determinative of any of the issues involved in Lange's suit against Coca-Cola. Also, in the prior property damage action, Lange could have been found guilty of negligence and still have had judgment in his favor if Coca-Cola was also found negligent.
Both lawsuits were filed in 1962. Lange's action was filed in the Circuit Court and Coca-Cola's was filed in the Municipal Division of the Circuit Court. The parties proceeded to trial in the Municipal Division on Coca-Cola's lawsuit without consolidating the two causes. The controlling fact or question in both of these cases is which of the two parties crossed the center line of Huntley Road. This question of fact, in our opinion, has been adjudicated in the earlier trial involving damage to Coca-Cola's truck. As stated in Smith v. Bishop, 26 Ill.2d 434, 187 N.E.2d 217, where the adjudication in the first cause is properly presented it is conclusive of the same question in the later suit and is an absolute bar to relitigating that question. In our judgment, whether the defendant or the plaintiff was at fault in the case at bar, has been fully litigated and adjudicated in the prior suit and the defendant in this cause should not be permitted to relitigate the matters there decided. The summary judgment of the Circuit Court in favor of the plaintiff on the issue of liability is, therefore, affirmed.
We now consider whether trial errors occurred which were so prejudicial to the defendant that a new trial on the issue of damages is required. We turn first to the contention that the defendant was irreparably prejudiced by the unresponsive answers of a doctor. The record shows that Dr. Donald Atlas was called by the plaintiff. He was qualified as a specialist in internal medicine and testified that he was a consulting internist and cardiologist. He examined plaintiff for the first time shortly before he testified. He stated that the plaintiff's heart was of normal size, but that a systolic murmur was audible. From his examination of an electrocardiogram taken of the plaintiff, he testified that it showed continuous defects, which were evidence of heart ...