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Bunch v. Rose

FEBRUARY 14, 1973.

FLOYD BUNCH, PLAINTIFF-APPELLEE,

v.

LOWELL THOMAS ROSE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Coles County; the Hon. JAMES R. WATSON, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

This case arose from a collision which occurred at an open country intersection. The Plaintiff-Appellee, Floyd Bunch, was a guest passenger riding in a pick-up truck being driven by the Defendant-Appellant, Lowell Thomas Rose. The truck collided with an automobile owned and operated by Defendant-Appellant, George W. Bender. In his complaint, plaintiff charged Rose with wilful and wanton conduct and Bender with negligence. The case was tried before a jury which found against both defendants and assessed damages in the sum of $75,000. The trial judge entered judgment on the verdict but later reduced the judgment to $74,000 by allowing credit for a $1,000 payment made under an insurance policy of defendant Rose.

The incident occurred on August 15, 1969, at approximately 7:00 P.M. It was still daylight, the road surface was dry, the weather clear. The plaintiff was riding with Rose in the cab of the truck, seated on the right with his 10 year old daughter, Jana Bunch between him and the driver, defendant Rose. The truck was headed east. Defendant Bender, with his wife as a passenger, was headed north. The field at the southwest corner of the intersection was planted in corn, the corn was tall. It had been cut back from the intersection some 15 feet, but blocked Rose's view to the south and Bender's view to the west. The field on Bender's right (to the east) was planted in soybeans which were not high enough to obscure his view in that direction. The field on Rose's left was also planted in corn. Thus Rose's vision was obscured both to his left and right while that of Bender was obscured to the left, from which direction Rose was proceeding, but not to his right. The roadways were level, the intersection was not controlled by any yield, stop or other traffic sign. Illinois State Trooper Osborne testified that the point of impact was two to three feet south of the center of the intersection. Bender's testimony, with which Mrs. Bender's testimony was in substantial agreement, was that he was going north in the middle of the road, speed 40 to 50 miles per hour. About 200 feet from the intersection he sounded his horn, heard no response. He could not see anything on the road to his left until he was 40 to 50 feet south of the intersection when he observed Rose's truck which was then about 120 feet from the intersection and going at a rate of 55 to 60 miles per hour. Bender applied his brakes but the truck maintained its speed or perhaps accelerated to about 65 miles per hour. Bender had slowed to 10 to 15 miles per hour when he entered the intersection but struck the right rear of the truck. Bender testified that immediately after the collision Rose told him that "I heard your honking but I thought I could speed up and get across before you got there." Mrs. Bender's testimony varied with that of her husband in rather minor detail as to estimates of speed and distance. She testified, on cross-examination, that at the time of giving her deposition she thought that her husband could have avoided the accident "* * * if he had thought fast enough by turning to the left." This opinion was admitted without objection. Bender's speed estimates given during his deposition varied from those given at trial.

Defendant Rose testified that he was travelling 30 to 40 miles per hour as he approached the intersection and he reduced that speed after entering the intersection. He did not see Bender's car in time to form an opinion as to its speed, seeing only an instant before the collision happened. He heard no horn and said there was no conversation about his hearing one or increasing his speed.

The plaintiff Bunch had no recollection as to how the accident occurred, his daughter Jana was unable to provide any details. Plaintiff sustained a back injury, was hospitalized for two months and placed in traction. Surgery was performed to fuse the bony union between the tenth and twelfth thoracic vertabrae. After discharge from the hospital he remained at home for two months and returned to his job as a side laster at a shoe factory on December 22, 1969. His medical advice was to refrain from heavy work, and he wore a back brace until March, 1970. Doctor Peterson testified that he had last seen plaintiff on September 3, 1970, at which time he still complained of low back pain, that this was caused by the fusing of the vertabrae during the healing process, that the pain was probably permanent but not likely to interfere with a normal worklife.

Plaintiff testified that he had difficulty in performing his work, and was exhausted at day's end. Both plaintiff and his wife testified to his inability to engage in former activities such as hunting, fishing, playing with his daughter, maintenance work around the home and on the family car. Plaintiff's medical expenses amounted to $4073 and he lost $2489 in wages.

To establish future loss of wages defendant, on the second day of trial, called two witnesses neither of whom had been listed in the plaintiff's answer to interrogatories on June 25, 1970, nor in plaintiff's answer to the court's pretrial order entered December 9, 1970, to the effect, "that each party shall furnish to adverse parties names of persons having knowledge of relevant facts and their addresses on or before 1/1/71. Names and addresses of persons later discovered to be furnished within 24 hours of discovery." The witnesses in question were Richard Helton, manager of the Brown Shoe Company where plaintiff was employed and Robert Meier, an economics statistician at Eastern Illinois University.

Before the first witness was called on the second day of trial and outside the presence of the jury, plaintiff's counsel informed the Court and defendant's counsel that he had, the night before, and for the first time talked to Meier and intended to call him as a witness on the issue of damages. That he had never used the witness before, that he had never before used a "statistician on economics in my life." No objection was stated to the use of the witness Helton, nor is any error urged as to plaintiff's failure to list him as a witness. As to Meier, Bender's counsel stated the following objections, "I object to the witness. The purpose of listing the witness is to give the other side a chance to examine the witnesses themselves. This is a type of witness we will have to speculate as to what he is going to say and what he is going to be. I just want to make that general objection. I will agree that he was probably not talked to until last night. On the other hand, there was no warning to us. I think he could have been talked to two or three nights ahead of time, to give the defendants a chance to check what he is going to say and have a chance to answer." Plaintiff's counsel responded, "I think the cases hold, when you have newly discovered evidence, it is permissible to offer it. It is not any violation of the object of the statute", to which Bender's counsel replied, "I will agree with that. It is [not] newly discovered evidence. This is a part of the case we normally expect." The court overruled the objection. We note that this was the extent of the objection made to Meier's testimony. There was no request for continuance on the part of defense counsel, nor was there any request that the witness be made available for interview prior to his testifying.

Helton then testified that there were two production lines on which side lasters worked. Line 1, the faster, consisted of 3 men, and line 2, the slower, was manned by 4 men. He further testified that side lasters were paid on a piece-work basis and prior to plaintiff's injury the rate of pay was $5.02 per 100 pairs of shoes and after the injuries the rate at the factory was increased to $5.40. The plaintiff testified that he was unable to produce as much work following his accident as he had been prior thereto. He had been on the faster line prior to the accident and was assigned to the slower line after the accident. Helton testified that there was an 11% decrease in plaintiff's production after he returned to work and explained this by saying that prior to the accident plaintiff had produced 36% of the faster line but thereafter produced only 25% of the slower line. Helton also testified as to the number of shoes which defendant had been able to produce in one full week, beginning January 10, 1970, and testified as to the pay which he had received for each of seven weeks prior to the accident. The record discloses that no objection was made at the time Helton was presented as a witness and not a single objection was made by defense counsel to any question put to, or answer elicited from, him during the entire course of his testimony including, of course, his testimony relating to the 11% loss of production. Helton also testified that he could translate the 11% loss of production into dollars of loss to plaintiff from the time that he went to work on line 2 to the present and that that loss amounted to $3006.00 "This would be the amount that he lost, would be the 11% that he lost actually from the time that he went on line 2 until the present date." Defense counsel asked only two questions on cross-examination which resulted in amplification, by Helton, as to how he arrived at the $3006.00 loss figure. There was no motion to strike any of Helton's testimony.

Meier was then called as a witness and testified as follows: Plaintiff's life expectancy was 29.9 years, his work expectancy 22.3 years. He testified as to statistics kept by the Bureau of Labor and particularly to the earnings of laborers in the leather goods and footwear industry from 1947 to 1969, both nationally and in the State of Illinois. The average increase in earnings during the period was 4 1/2% per year, and for the last 5 years was 5.1%. He testified that from these figures he was able to project with reasonable certainty the future wages to be paid to shoe workers in Coles County and submitted a chart of the future salaries. Then, using the 11% decrease in plaintiff's productivity, as testified to by Helton, Meier concluded that plaintiff would sustain a loss of future earnings during the period of his work expectancy in the total sum of $31,627. On cross-examination, Meier was asked if he was assuming any change in economic growth as inflation and responded that his computations were based on the assumption that the rate of inflation of the past would continue. Defendant Bender then moved to strike Meier's testimony on the ground that the statistics used would have no established relationship to the community because the figures were based on Statewide figures and not confined to Coles County, where plaintiff worked and that there was no evidence to show that any loss would continue was overruled. But this witness testified that "this data would be applicable for Coles County just as it would be for any other county in the State."

Defendant-Appellant Rose states that the issue which he presents for review are:

A

Can the $75,000 judgment stand when it is based on the "false fact" of a $31,627 future wage loss which ...


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