APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE MODIFIED OPINION OF THE COURT ON REHEARING:
Plaintiff, Hobert LeMaster, brought an action under the provisions of the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1970)) against his employer, the Chicago Rock Island & Pacific Railroad Company, for personal injuries he sustained in the course of his employment. After hearing the evidence in the case, a jury returned a verdict of $1,000,000 for plaintiff, and the circuit court entered judgment thereon. The trial court denied the defendant's post-trial motion, and this appeal follows.
On appeal, the defendant alleges the following errors: (1) The plaintiff's attorney engaged in prejudicial misconduct by improperly cross-examining defendant's claim agent, and by commenting improperly during closing argument; (2) The trial court erred in admitting prejudicial evidence of plaintiff's family circumstances; (3) The trial court erred in improperly restricting the cross-examination and impeachment of plaintiff's treating physician, and in excluding the doctor's entries in the hospital record from evidence; (4) The trial court erred in admitting three irrelevant contract provisions into evidence, and giving misleading instructions which prejudiced the jury; (5) The trial court improperly refused to allow the defendant to establish its defense by a full cross-examination of plaintiff and plaintiff's expert witness; (6) The plaintiff's use of evidence of his injuries constituted error; (7) The trial court erred in not following the Illinois Allendorf rule concerning the method of reducing future earnings to their present cash value; (8) The verdict of $1,000,000 was excessive; and (9) The cumulative effect of the trial court's errors and the prejudicial misconduct by plaintiff's attorney deprived the defendant of a fair trial.
The testimony at trial disclosed that in the early morning hours of June 12, 1969, the plaintiff was working as a switch foreman for the defendant Railroad in Davenport, Iowa. At that time, the plaintiff was supervising the movement of seven empty boxcars into a Ralston-Purina Company grain warehouse. As the boxcars approached the warehouse, plaintiff boarded the lead car and started climbing its ladder so he would be in position to properly set the car's handbrake. Plaintiff testified that while on the ladder he felt a sudden jolt which threw him to the tracks below, where he was run over by the lead wheels of the second boxcar, resulting in the amputation of his left leg 6 inches below the groin, his left hand above the wrist, and portions of three toes from his right foot. He also sustained a broken collarbone and rib.
In his complaint filed pursuant to the provisions of the FELA, plaintiff alleged that the Railroad negligently failed to provide him with a reasonably safe place to work. At trial, the plaintiff introduced evidence to prove that the train yard he had worked in the night of the accident was slippery as a result of a combination of spilled grain, water from a recent rainfall and an oil base weed killer sprayed on the tracks earlier in the day which formed a slippery "jello-like" mush that was stuck to plaintiff's boots and gloves. Other evidence showed that the jolt plaintiff described in his testimony may have been caused by a minor derailment of the lead boxcar. Plaintiff's theory was that the derailment jolt combined with the slippery mush on his boots and gloves caused him to lose his hold on the train's ladder and fall to the tracks.
The Railroad's theory was that the plaintiff's fall was caused entirely by his own negligence, including the violation of certain railroad safety rules which specify the proper way to supervise a movement of boxcars.
At trial, the plaintiff proved actual damages amounting to over $180,000. After hearing all the evidence, the jury returned a verdict for plaintiff in the amount of $1,000,000.
The first allegation of error we consider concerns the plaintiff's cross-examination of Charles E. Hill, the defendant Railroad's employee who signed the defendant's answers to plaintiff's interrogatories. The defendant claims that Hill was improperly cross-examined and the subject of the cross-examination was raised improperly in plaintiff's closing argument so that the plaintiff was able to create the unfair impression that the Railroad had deliberately concealed evidence from the plaintiff during discovery, thus inflaming the emotions of the jurors against the defendant and depriving the defendant of a fair trial.
To understand the facts leading up to the cross-examination, we must describe the discovery process of the case. After the reciprocal Monier order was entered, plaintiff directed written interrogatories to defendant under the provisions of Illinois Supreme Court Rule 213. Four months later, on October 14, 1970, defendant filed its first answers to the interrogatories. We are concerned with interrogatories numbers 3, 4 and 21. Plaintiff's interrogatory No. 3 asked:
"State the names and last known addresses, as known to the defendant's agents, employees or attorneys, of all persons who were occurrence witnesses to the incident mentioned in the Complaint when Hobert LeMaster was injured on June 12, 1969."
Defendant answered: "Unknown investigation continues." Plaintiff's interrogatory No. 4 asked:
"State the full names and address of each person not named (in 3) above who was present or claims to have been present at the scene immediately before, at the time of or immediately after said occurrence."
In answer, defendant listed the name of the engineer who moved the cut of train cars which struck the plaintiff, and the names of three men who were in plaintiff's switching crew on the night of the accident. Plaintiff's interrogatory No. 21 asked:
"State whether or not the defendant railroad has a surveyor's diagram or plat in its possession covering the physical layout of the railroad tracks, streets and buildings, etc. in the general area where the plaintiff was injured on June 12, 1969, and if the answer is in the affirmative, state:
a) The date the survey or plat was made;
b) The person or persons who has possession of a copy of said plat."
The defendant stated that it did have such a plat, that the plat was dated April 15, 1959, and was in the possession of G.E. Johnson.
On November 5 and December 28, 1970, defendant filed amended answers to plaintiff's interrogatory No. 4, naming the Railroad's superintendent of safety, division safety officer, train master, and terminal superintendent as having been present at the scene either immediately before, at the time of, or immediately after the occurrence.
The original answers and all amended answers were signed for the Railroad by C.E. Hill, a claim agent employed by the defendant Railroad.
A few weeks prior to trial, on December 29, 1970, plaintiff's counsel sent a letter to defendant's counsel stating that on December 24, 1970, the Railroad had, for the first time, disclosed that it possessed certain plats and diagrams prepared a few hours after the accident by a then-unknown employee of the Railroad. Because the defendant's possession of these diagrams apparently contradicted the defendant's answer to interrogatory No. 21, plaintiff demanded immediate up-to-date answers to all prior interrogatories and immediate compliance with the Monier order. Plaintiff further demanded the production of any of defendant's personnel who were at the scene on the date of the injury.
On January 4, 1971, the defendant produced for deposition Mr. Edward Monahan, a previously undisclosed Railroad employee, who was at the scene a few hours after the accident to prepare diagrams of the site. The defendant also produced three diagrams of the track area made by its engineering department; two diagrams were dated June 12, 1969, and one was dated January 4, 1971.
On January 13, 1971, the third day of trial, defendant made certain oral amendments to its answers to plaintiff's interrogatories. On January 19, 1971, plaintiff's counsel stated to the court that although defendant had presented to him certain weed spray records on December 24, 1970, plaintiff now found that these records were incomplete. These records represented the log of the Railroad's weed spray program of June 1969, in the West Davenport rail yards, where the injury occurred. Because of the plaintiff's allegation at trial that the oil based weed spray had contributed to cause his fall under the moving train, plaintiff's counsel brought the matter to the attention of the trial court when he discovered that the records he had been given omitted the log of weed spray operations for June 11 and 12, 1969, the day before and the day of the accident. Upon this representation the trial judge suggested that defendant's counsel make a search for the missing records. Defendant's counsel contended he had given plaintiff all of the weed spray records. Nevertheless, on the next day, January 20, 1971, defendant's counsel disclosed that he had found the weed spray records of June 11 and 12, 1969, and presented them to plaintiff.
On January 20, 1971, Charles Hill, a claim agent employed by the defendant who signed all of the defendant's written answers to the interrogatories, was called as an adverse witness by the plaintiff. The defendant immediately objected to Hill's testimony on the grounds of relevancy. Plaintiff's counsel argued that due to defendant's seeming reluctance to produce documents during the course of the discovery proceedings, he believed that there was further discoverable information which had not been disclosed by the Railroad. The trial judge overruled the objection and allowed Hill to be cross-examined as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60).
Plaintiff's counsel questioned Hill about the answers to the interrogatories he had signed on behalf of the Railroad. During this questioning plaintiff's counsel read, in the presence of the jury, plaintiff's interrogatories No. 4 and No. 21, and the Railroad's original and amended answers to these interrogatories. Plaintiff's counsel also asked Hill whether the weed spray records were under his control; he responded that they were not. Counsel inquired whether Hill knew that certain of the weed spray records were not given to plaintiff until the 20th; Hill responded that he did not. Plaintiff further inquired whether Hill knew when the existence of Monahan was disclosed and certain diagrams prepared under his supervision were given to plaintiff; Hill said he did not.
After Hill's testimony defendant objected to the entire examination as being irrelevant and moved that the testimony be stricken and a mistrial declared. During argument on the motion plaintiff reviewed the above mentioned sequence of discovery and stated that he believed that there were further weed spray records which had not been produced by defendant. (The plaintiff contended that his examination of witness Cruse, another employee of defendant, disclosed that there may have been records showing the composition of the sprayed weed killer, whether the chemical weed killer was mixed with water or oil, i.e., the actual "tank car consist.") Plaintiff concluded that all of these facts cast great doubt upon the defendant's contention that it had produced all the documents it had been ordered to produce, and that this failure to produce was a relevant fact for consideration by the jury. In support of its motion, defendant cited to the court 34 Ill. L.&Pr. Trial § 85 (1958), which states in part that "counsel should never ask irrelevant questions merely for the purpose of embarrassing the witness or causing the jury to draw some unfavorable inference against the witness." (34 Ill. L.&Pr. Trial § 85, at 524-25 (1958).) The court ruled that the entire testimony of Charles Hill should be stricken, and then the proceedings went off the record. Upon resumption of the record, plaintiff made a comment concerning the matter and then the following exchange occurred:
"THE COURT: All right. If there is anything you want to have me rule on tomorrow morning, I can still change my ruling.
DEFENDANT'S COUNSEL: The damage has been done and in conjunction with that, we again renew our motion for a mistrial based on improper examination of Mr. Hill. All of the information he wanted, he got. It is as simple as that.
PLAINTIFF'S COUNSEL: Yeah?
DEFENDANT'S COUNSEL: Yeah.
PLAINTIFF'S COUNSEL: Here is a piece I didn't get, and it wasn't in the original Monier production, Exhibit No. 200. I never got that, a critical piece of evidence.
THE COURT: All right, I will reverse myself. I will leave his testimony in because he did talk about the weed program here. I notice from my notes he did. All right, strike Charles Hill's testimony before the jury, motion heard and denied.
DEFENDANT'S COUNSEL: Okay, I will scratch my note out.
THE COURT: Okay, that settles that."
Exhibit No. 200 is the log of weed spraying operations first produced by defendant on January 20, 1971, well into the trial.
During his closing argument plaintiff's attorney again raised the issue when he argued that defendant had not disclosed the existence of Monahan in accordance with the ordered discovery. The defendant's objection was overruled and plaintiff continued, arguing that the reason the defendant never listed Monahan was "because Monahan had some goods that they didn't want revealed to the public eye."
On appeal defendant argues that it was error to allow the plaintiff's examination of Hill and the comments during closing argument, because through this evidence, innuendo and improper argument, plaintiff's counsel inflamed the jurors' emotions against the Railroad so that the Railroad was denied a fair trial. Defendant specifically complains that there was no basis for allowing plaintiff to read the interrogatories and answers during the examination of Hill, as answers to interrogatories may be used only for impeachment or as an admission of a party. We disagree and find that plaintiff's counsel's questioning of Hill and the subsequent argument to the jury were not improper when considered in the totality of events which occurred during the trial of this cause.
• 1 To begin an analysis of this issue, it is clear that the authorities recognize that a party's failure to produce documents is conduct that can be evidence.
"In the second class of cases is to be included that sort of conduct which is received only when it emanates from a party to the cause or a witness, and can therefore be equally justified as involving an admission or a discrediting circumstance. Such conduct, for example, as the fabrication or suppression of evidence, the failure to produce important witnesses or documents, indicates a consciousness that one's cause is a bad one or a weak one, and from this consciousness or belief may be inferred the fact that it is bad or weak, i.e., that facts essential for its support are lacking * * *." (2 Wigmore, Evidence § 267, at 95 (3rd ed. 1940).)
Wigmore further states that this evidence, when confined to the conduct of parties in the cause, is receivable against them as an implied admission, and is receivable equally against civil parties and criminal defendants. 2 Wigmore, Evidence § 277 (3rd ed. 1940).
"No useful purpose would here be served in undertaking to make further classification of the innumerable instances of conduct, both verbal and non-verbal, of a party indicating a consciousness of guilt. The common experience of mankind in dealing with the ordinary affairs of life should offer, it would seem, an indispensable test in making the determination as to whether or not the particular conduct encountered is calculated to raise the inference of a consciousness of guilt. And in this connection, common experience dictates that often times while an affirmative or a negative act of a party may not in and of itself justify such an inference, considered in the light of the attendant facts and circumstances, an entirely different result is warranted." (2 Wigmore, Evidence § 278, at 53 (1975 Supp.).)
This is also the law enunciated in Illinois. Gard, Illinois Evidence Manual Rules 22, 23 (1963); Tepper v. Campo (1947), 398 Ill. 496, 505.
Defendant contends that it has not suppressed or concealed any evidence inasmuch as all the evidence plaintiff alleges was withheld was eventually given to plaintiff either immediately before or during the trial. A similar argument was considered and rejected by this court in Carlson v. General Motors Corp. (1972), 9 Ill. App.3d 606, 289 N.E.2d 439, wherein the defendant refused to disclose certain discoverable material to the plaintiff prior to trial and, as this material was favorable to the defense case, disclosed the material ...