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Paulsen v. Gateway Transp. Co.

NOVEMBER 4, 1969.

IRMA M. PAULSEN, PLAINTIFF-APPELLEE,

v.

GATEWAY TRANSPORTATION COMPANY, INC., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. FRED J. KULLBERG, Judge, presiding. Reversed and remanded.

PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.

This is an action for personal injuries arising out of an auto accident on July 20, 1965. In the trial of this case the plaintiff proved medical bills amounting to $1,318.30, and claimed lost wages of $2,800 in addition thereto. The jury returned a verdict of $37,500 on behalf of the plaintiff upon her claim that the accident occasioned the surgical removal of an intervertebral disc in February of 1966. The accident occurred when the defendant's tractor-trailer struck the rear end of plaintiff's vehicle, driving it into a vehicle in front of her.

Two assignments of error are made. Both concern the conduct of plaintiff's counsel; first, in his examination of the plaintiff during the trial and second, during his argument to the jury.

The record discloses that the court reporter was not present at the time of plaintiff's opening statement and defendant's closing argument, ". . . but was called in by the Court in the middle of Mr. Goldman's final argument before the jury. . . ." Plaintiff, in her brief, states ". . . the court can read the same and decide whether or not the trial judge erred in his judgment. . . . It should also be noted that only part of plaintiff's closing argument was reported and none of the appellant's argument to the jury was reported, and, therefore, is not subject to review by the Appellate Court."

The plaintiff has not cited any authority for this proposition; however, in the case of Brown v. Schintz, 98 Ill. App. 452, 455 (1901) it was held:

"Although the transcript of record is not complete as to the whole case, yet if it fully and fairly presents all matters material and necessary for a decision of the questions involved, under the assignments of error, it is enough." (Citations omitted.)

The Brown case was later affirmed by the Supreme Court, 202 Ill. 509, 67 N.E. 172 (1903), and in quoting from an earlier case of Bertrand v. Taylor, 87 Ill. 235, it had this to add at pages 512-513:

"`. . . This court cannot properly consider any question arising upon the record unless we have a full record before us, or it is made known to us in some approved manner that the transcript contains all parts of the record material to the question submitted to us for decision.'" (Emphasis added.)

The defendant relies upon only the transcribed portion of the plaintiff's closing argument to present one of his questions of error. Even if the closing remarks of defendant's counsel were of such a nature as to provoke the final remarks of plaintiff's counsel, which is not claimed herein, still, under the Brown case, an "approved manner" for making such instance known to this Court would be for the plaintiff to use Supreme Court Rule 323(c). We, therefore, find no merit to plaintiff's contention in this regard.

Some excerpts of plaintiff's closing argument to the jury, which are mostly directed at defense counsel, are as follows:

"Is that fair, ladies and gentlemen of the jury to try and deprive this poor widow of whatever she has coming? . . .

"Would you want that to happen to you, to be treated that way?"

Counsel referred to defense counsel as ". . . this man who plays fast and loose with the facts in this case, such as counsel has done." The court overruled an objection and plaintiff's counsel then continued:

"Think about all of that. Think about it. It isn't decent, it isn't fair. He is trying to change the facts by trickery, he is trying to change the situation, he is trying to color the facts, ...


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