APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
FIEDLER, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 31, 1975.
Plaintiff-appellant William Bauer (hereinafter plaintiff) brought a negligence action against defendant-appellee Mary Timucci (hereinafter defendant) for damages for personal injuries sustained in an automobile collision (apparently a whiplash soft tissue injury of the neck and back). Plaintiff was a passenger in an automobile which was rear-ended by defendant. In a jury trial, at the close of all the evidence, plaintiff's motion for a directed verdict on the issue of liability was allowed. Respective counsel then made closing arguments on the sole remaining issue of damages. Toward the end of defense counsel's argument, his attention was first attracted to plaintiff (who was sitting with his attorney at the plaintiff's counsel table) by plaintiff's sobbing. When counsel looked at plaintiff, he saw that plaintiff, still seated, had turned away from the table, had his head down toward his legs with his handkerchief out, and was holding the back of his neck and head, swaying and crying. When counsel completed his closing argument a short time later, he checked with his associate counsel and with his client and was informed that plaintiff had been conducting himself in the same way at various times all during the closing arguments. Meanwhile, plaintiff's counsel had begun his rebuttal argument. Defense counsel interrupted to ask leave to bring the matter of plaintiff's conduct to the attention of the court and requested a sidebar conference. The conference was off the record, so that what was said is not known. When plaintiff's counsel resumed his rebuttal argument, he said to the jury: "Ladies and gentlemen, I want you to remember your oath. I agree with Mr. Hatch [defense counsel] in only one respect, don't let sympathy play any part in it." Counsel then completed his rebuttal argument and the case was given to the jury on the issue of damages. The jury returned a verdict for plaintiff in the amount of $37,500; plaintiff's special damages, which were contested, amounted to from $7000 to $7,300.
Defendant filed a post-trial motion for a new trial, based on several grounds including the contention that the amount of the verdict was excessive as the result of plaintiff's improper conduct during the closing arguments. After a hearing on the motion, the trial court granted a new trial on the issue of damages only, because it thought that defendant had not had a completely fair trial owing to the likely prejudicial effect of plaintiff's conduct on the jury. The court, however, expressly refused to find that plaintiff's conduct was either simulated or intentional; the court stated that it simply did not know. The court also stated that it had observed plaintiff's conduct before defense counsel had called attention to it.
Pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1971, ch. 110A, par. 306), plaintiff petitioned for leave to appeal from the grant of the new trial. Defendant filed a response to plaintiff's petition. We granted the leave. Petitioner then elected to have his petition serve as his appellate brief. Defendant also elected to allow her response to serve as her answering brief, together with a two-page supplemental answering brief in further response to a contention in plaintiff's brief. Plaintiff then filed a reply brief.
We formulate the respective contentions of plaintiff and defendant on this appeal as follows:
(A) Plaintiff raises the following threshold contention that, in the trial court, defendant waived the matter of plaintiff's conduct:
(1) Since the record does not show that defense counsel moved for a mistrial on the ground of plaintiff's conduct during the closing arguments before the case was sent to the jury on the issue of damages, it must be taken as a fact that he did not do so at that time.
(2) Since he did not do so at that time and since that time was the time when he was required to do so in order for his objection to be timely, he must be deemed to have waived the matter of plaintiff's conduct and could not raise that matter for the first time in the post-trial motion for a new trial, and it was error for the trial court to permit him to do so and to grant a new trial on that ground on the issue of damages only.
In response to this threshold contention of plaintiff, defendant contends:
(1) The presumption of regularity (i.e., the presumption that the judgment or order appealed from is correct and in accord with the law and the facts) creates in this case an initial presumption that defense counsel did move for a mistrial on the ground of plaintiff's conduct, at the sidebar conference before the case was given to the jury. The burden of showing from the record that he did not do so is therefore on plaintiff; and plaintiff must affirmatively show the failure to make the motion, so that the mere silence of the record as to whether counsel did or did not so move does not sustain plaintiff's burden.
(2) But even if it be assumed that defense counsel in fact did not then so move, the normal requirement that he do so at that time is not applicable here, because the purpose of the requirement could not have been achieved. The purpose of the requirement that the objection be made before the case is given to the jury is to avoid a second trial. But, under the instant circumstances, even if defense counsel had moved for a mistrial at the sidebar conference, a second trial could not have been avoided. If the motion had been allowed, a second trial would occur. If the motion had been denied, the matter could be raised on the motion for a new trial and again, as shown by what in fact happened here, a second trial would result. If the trial court had reserved its ruling, again, as shown by what in fact happened here, a second trial would result. Since therefore, the purpose of the normal rule that timeliness requires that the objection be made before the case goes to the jury could not have been achieved, that normal rule is inapplicable and defendant's raising of the matter in her motion for a new trial was timely under the circumstances of this case.
(B) Plaintiff then raises the following two substantive contentions, each of which defendant simply denies:
(1) Under Illinois case law, plaintiff's conduct during the closing arguments did not constitute legally sufficient grounds for the exercise of the trial court's discretion to grant a new trial on the issue of ...