Appeal from the Circuit Court of Marion County, Fourth
Judicial Circuit; the Hon. GEORGE W. KASSERMAN, Judge, presiding.
Rehearing denied August 26, 1969.
This is a wrongful death action brought in the Circuit Court of Marion County, Illinois. The plaintiff alleged in her complaint that her decedent's death was caused by the negligence of the defendant in driving her automobile. The jury returned a verdict for the defendant upon which the Court entered judgment. This appeal is taken from such judgment.
The plaintiff alleges multiple errors by the Court: That the Court erred in denying the plaintiff's motion to sever Count I and Count II for trial, that the Court erred in denying the plaintiff's motion to dismiss Count II of the Complaint without prejudice, that the jury was improperly instructed, that the Court improperly admitted and excluded certain evidence, and that the conduct of the defendant's attorney was prejudicial. The allegations of error will be considered in the same sequence as they are presented by the plaintiff.
The first allegation of error by the plaintiff is that the Court erred in denying the plaintiff's motion to sever Count I and Count II for trial. It appears that the Complaint filed by the plaintiff contained two counts. Count I was brought by Nellie Logue as Administrator of the estate of Edward Logue and sought damages for wrongful death. Count II was brought by Nellie Logue individually and sought medical and funeral expenses under the Family Expense Statute, § 15, c 68, Ill Rev Stats. On the day of the trial the plaintiff made an oral motion to sever Count I and Count II for trial. The Court denied the motion.
The plaintiff bases her argument on section 51 of the Civil Practice Act which provides, "An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right." The plaintiff argues that in Count II that the plaintiff was not the representative of a deceased person and that accordingly, the defendant would have been competent to testify as to this count under section 2 of the Evidence Act, c 51, Ill Rev Stats. The plaintiff's argument continues that such a trial of both counts together would have seriously prejudiced the plaintiff since it would have been impossible for a jury to consider the defendant's testimony as to Count II and to disregard it as to Count I, regardless of how carefully it might have been instructed.
We note that the plaintiff filed her Complaint on December 29, 1966, and no motion was made to sever until the date of the trial on June 21, 1967. The plaintiff's decision to sue both individually and in her administrative capacity, of course, was of her own doing and a motion to sever issues for trial is addressed to the sound discretion of the trial judge. Blachek v. City Ice and Fuel Co., 311 Ill. App. 1, 72 N.E.2d 220 (1947); Mount v. Dusing, 414 Ill. 361, 111 N.E.2d 502 (1953). We do not feel that the Court abused its discretion, particularly in light of the late date of the plaintiff's motion to sever.
Upon the Court's denial of the plaintiff's motion to sever, the plaintiff moved to dismiss Count II of the Complaint. The motion was granted by the Court and the jury was selected. After the selection of the jury but before opening statements, apparently a discrepancy arose as to whether Count II had been dismissed with or without prejudice, and upon the Court's own motion the motion was recalled and the Court ruled that it would not dismiss Count II without prejudice. Thereupon an Order was entered dismissing Count II with prejudice.
The plaintiff alleges that the Court erred in this regard and cites for our consideration section 52 of the Civil Practice Act; section 52, subsection 1 provides in part, "the plaintiff may at any time before trial or hearing begins upon notice to each party who has appeared or his attorney, and upon payment of costs dismiss his action or any part thereof as to any defendant without prejudice, by order filed in the cause."
If a plaintiff is desirous of dismissing a count of a multiple-count complaint at the moment of trial, it is incumbent upon him to correctly and adequately inform the Court and the opposing parties whether his motion is to dismiss with or without prejudice, particularly if it is an oral motion without the notice required by the Civil Practice Act and under such circumstances as are presented in this case; the Court properly denied the Motion To Dismiss without prejudice after selection of the jury since the trial had actually begun. Wilhite v. Agbayani, 2 Ill. App.2d 29, 118 N.E.2d 440 (1954).
With regard to the plaintiff's allegation that the jury was improperly instructed, the plaintiff alleges that four instructions tendered by the defendant and given by the Court were erroneous. The first instruction objected to by the plaintiff is defendant's instruction No. 17, which is an IPI instruction as to section 175, c 95 1/2, Ill Rev Stats, which requires a pedestrian to walk on the left side of the roadway.
The evidence as to the actual collision is sketchy inasmuch as the defendant was precluded from testifying as an incompetent by virtue of the Evidence Act. However, it is clear that the defendant was proceeding south on a rural road and the plaintiff's decedent was a pedestrian. Just prior to the collision the plaintiff's decedent was observed standing in the middle of the road. The basis of the plaintiff's argument is that the plaintiff's decedent was struck on the east side of the road by the defendant who was proceeding south. The evidence revealed that the defendant's automobile came to rest on the east side of the road and that the plaintiff's decedent was pinned beneath the automobile. The plaintiff's argument continues that the plaintiff's decedent was actually in less danger from the defendant on the right side than on the left side of the road because the defendant was required to drive on her right and that if the defendant had kept to the right side of the road, the plaintiff's decedent would have suffered no harm.
The plaintiff's argument overlooks the fact that there was no direct evidence that Mr. Logue was on the right side of the road, but in fact, all of the inferences are that the plaintiff's decedent was standing in the middle of the road when struck. We believe that there was sufficient evidence from which the jury could draw the inference that the plaintiff's decedent violated the Statute by not walking on the ...