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Morgan v. Rogers

JUNE 25, 1975.

DENNIS MORGAN, A MINOR, BY HIS FATHER AND NEXT FRIEND, THEODORE MORGAN, JR., PLAINTIFF-APPELLANT,

v.

JUANITA ROGERS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. CHERRY, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

This is an action commenced on behalf of a minor, 6 years of age, for damages resulting from his being struck by an automobile driven by the defendant. A stipulation was entered into by the parties on February 13, 1974, to submit the cause to a jury on the issue of liability only, and in the event the jury found the defendant to be liable, a stipulated sum of money was agreed to as and for damages. After trial, the jury returned a verdict for the defendant and against the plaintiff and judgment was entered on the verdict. A motion to vacate and set aside the verdict and judgment and to grant a new trial was denied and plaintiff appeals.

The sole issue is whether the minor plaintiff received a fair trial. The plaintiff contends that the cumulative effect of improper examination by defense counsel of a police officer who investigated the accident and improper argument to the jury by defense counsel constitutes reversible error. The defendant maintains that if there was any error committed, it was harmless and not prejudicial. The question for us then is whether the jury was improperly influenced by the complained of conduct. After a careful examination of the record we are in accord with the plaintiff that he was prejudiced by error committed during trial and that we must reverse the judgment and remand the cause for a new trial.

Our disposition of the issue presented makes it necessary to detail only certain of the facts in the record. On the afternoon of June 2, 1968, the plaintiff, Dennis Morgan, then age 6, was crossing approximately midblock on South Vernon Street between 38th and 39th Streets in Chicago. Vernon is a narrow, one-way street northbound. The plaintiff and another boy, both of whom testified at trial, left plaintiff's aunt's house to go to a park located on the other side of Vernon Street. The boys were running. The defendant, Juanita Rogers, who also testified, was driving the car of a friend, who was also in the car, northbound on Vernon. She had been driving for about 6 months. Her friend had shown her how to drive when she left the house. She had asked her friend to come along because her friend had a driver's license and she did not. She had a driving permit, and therefore needed to have a licensed driver in the car with her. In a deposition she had been asked: "Was she [her friend] teaching you how to drive just at the time this accident happened?" She had responded: "No, she wasn't. Yes, she was teaching me how to drive; she was in there showing me how." She testified that she did not see the boy before the occurrence.

During the trial it appeared that defense counsel was going to present as a witness a police officer who came to the scene after the boy had been struck. Counsel for the plaintiff thereupon made a motion outside the presence of the jury that defense counsel be restricted in questioning the police officer and allowed to inquire only into the latter's own observations, and not about any conversations he had with others present at the scene, which would be hearsay. The motion was granted.

Thomas Murray was the police officer presented as a defense witness. He investigated the accident. In answer to a question by defense counsel he said: "I proceeded to make my investigation as to the cause and talked to the people who stated —," and an objection was then made by counsel for plaintiff to any conversation and it was sustained. The following then ensued:

"Q. [by Defense Counsel] Officer, when you arrived at the scene of the accident, did you make your own independent investigation?

A. Yes, sir.

Q. When you arrived at the scene of the accident, was the vehicle involved still in the same place it was at the time of the accident?

A. Yes, sir.

[Plaintiff's Counsel]: I am going to object as to whether he had —

THE COURT: Objection will be sustained. The answer will be stricken; the jury will be instructed to disregard it."

The officer then began to describe the location of the defendant's vehicle when he arrived. Then the following occurred:

"Q. [by DEFENSE COUNSEL] Now when you did see the car in the street, did you make a notation as to its location when you arrived with relation to the parked cars?

A. Yes, sir.

Q. Did you put that on your report?

A. It's on a report, sir.

Q. Now Officer, when you arrived at the scene of the accident, did you from your independent investigation determine where this accident took place?

A. Yes.

[PLAINTIFF'S COUNSEL]: I am going to object.

THE COURT: Objection sustained.

[DEFENSE COUNSEL]: I'd like a hearing on ...


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