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Mulvey v. Ill. Bell Telephone Co.

MAY 12, 1972.

ROSEMARY A. MULVEY, ADMRX. ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. SIGMUND S. STEFANOWICZ, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

This is an appeal from a jury verdict for the defendant in a wrongful death action. Plaintiff raises two issues on appeal: (1) whether in an action for wrongful death the remarriage of the surviving spouse prior to trial may be disclosed to the jury; (2) whether defense counsel's conduct during the course of the trial and in closing argument was so improper as to require a new trial. Plaintiff does not claim that the verdict was contrary to the manifest weight of the evidence.

On the evening of July 8, 1963, Thomas Mulvey, decedent, was driving east on a two lane highway when he was struck head on by Robert Owen's westbound car.

Owen had turned into Mulvey's lane after striking an unlighted sawhorse barricade that had been placed in Owen's lane by a 15-year-old boy named Charles Hauhe III. Prior to the accident several cars in the westbound lane had successfully maneuvered past the sawhorse.

On the side of the sawhorse the words "Ill. Bell Tel. Co." were stenciled in black on a yellow background. It had been lying in the grass near the road four to six weeks prior to the collision.

Defendant Owen was dismissed during the course of the trial pursuant to a covenant not to sue. Charles Hauhe III was never a party to the lawsuit.

During a pre-trial conference plaintiff's counsel revealed that Mrs. Mulvey had remarried. Plaintiff's counsel asked that no mention be made of the remarriage at voir dire or during the trial.

Defense counsel insisted that he had a right to identify the parties under Supreme Court Rule 234 *fn1 and therefore had the right on voir dire to point out to the jury that Mrs. Mulvey is now Mrs. James A. Nugent. Plaintiff's counsel suggested that asking the jurors if they knew the family of Lt. James A. Nugent would be sufficient.

The judge ruled that counsel could inquire of jurors whether they were acquainted with plaintiff either under the name of Mulvey or Nugent and that he would instruct the jury on the the issue of remarriage.

During voir dire defense counsel stated to four jurors, over the objection of plaintiff's counsel, that "[i]n 1963, the plaintiff was known as Rosemary A. Mulvey. Her name now at the present time is Mrs. James A. Nugent. Do any of you know her by that name?" He asked similar questions of other jurors.

Plaintiff moved for a mistrial which the court denied.

The court then instructed the jury as follows:

"Under our Supreme Court Rules, however, at this time I would like to instruct you that it has been suggested that Mrs. Mulvey has remarried. You are instructed now that remarriage, if such is the fact, is immaterial and is not to be considered by you."

Plaintiff's first contention is that the disclosure of the remarriage of a surviving spouse so prejudiced the jury that a verdict in favor of the plaintiff was impossible.

• 1 The majority rule in the United States and the rule in Illinois is that the subsequent remarriage of a surviving spouse does not mitigate damages in a wrongful death action and is therefore irrelevant. Moore v. Atchison, T. & S.F. Ry. Co. (1963), 28 Ill. App.2d 340, 171 N.E.2d 393; Annot., 87 A.L.R.2d 252.

This does not mean that a trial court should bar mention of remarriage as it relates to the identification of parties during voir dire. The New Jersey Supreme Court in Dubil v. Labate, 245 A.2d 177, 180, discusses the problem as follows:

"Though evidence of the plaintiff's remarriage is not relevant to the question of damages, we disagree with the trial court's attempt to suppress any mention of the remarriage. It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it. However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury. It seems to us that in the course of the trial of a wrongful death case, it would be virtually impossible to avoid mention of a remarriage without resorting to untruths. (Contrast the situation here with cases where the subject of a defendant's insurance coverage may be kept from the jury without resort to untruths. Brandimarte v. Green, 37 N.J. 557, 182 A.2d 562 (1962); Sutton v. Bell, 79 N.J.L. 507, 77 A. 42 (E. & A. 1910).) Thus, we believe that — while evidence of the details of a remarriage, such as the earnings of the new spouse or the birth of a child, is to be excluded — the mere fact of a plaintiff's remarriage should not be kept from the jury. The trial judge should instruct the jury, at the beginning of the case, that the plaintiff has remarried but that this fact is to play no role in their determination of the pecuniary advantage which would have resulted from a continuance of the life of the deceased."

Although the precise issue in the case at bar has not been discussed in an Illinois case, it is clear that Illinois courts have followed the Dubil position. In Moore v. Atchison, T. & S.F. Ry. Co., ...


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