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Nowakowski v. Hoppe Tire Co.





APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding. MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Stanley Nowakowski, brought a personal injury action based on negligence and strict liability in tort against the defendant, Hoppe Tire Company. Plaintiff was injured when a truck tire which he was mounting exploded and struck him. Defendant is a corporation engaged in the business of repairing, reconditioning, and selling tires. After a trial in the circuit court of Cook County, a jury returned a verdict in favor of plaintiff for $105,000.00. The trial court entered judgment on the verdict, and denied defendant's post-trial motions.

On August 28, 1967, plaintiff was employed by Frank Cordray Motor Service (hereinafter Cordray), as a mechanic to service Cordray's truck fleet. On that day he proceeded to mount certain "run-out" tires on a vehicle that Cordray planned to trade in. Plaintiff had mounted three tires and was in the process of mounting the fourth when the accident occurred. The fourth tire did not align on the hub properly and, to correct the difficulty, plaintiff hit the tire twice with a hammer. The tire exploded and the metal rim struck plaintiff, injuring him severely. He sustained cerebral injuries and suffered memory lapses.

The tire and wheel assembly involved in the occurrence consists of a 10:00 x 20 size tire, a split rim on which the tire was mounted, and a locking ring. Approximately one-fifth of Cordray's tires and wheel assemblies were of this type. Though Cordray used a number of tire companies for tire repair and supply, defendant had the majority of its business.

Plaintiff introduced evidence that the accident was caused by the defective condition of the locking ring as it was seated. The ring was corroded with years of rust, and was distorted and beat out of shape. Plaintiff also presented testimony that it was normal procedure in mounting tires to employ some force and, if necessary to use a hammer.

Plaintiff testified that on the afternoon of the occurrence he observed Eddie Goddard, secretary of the defendant company, deliver a number of run-out tires to the Cordray garage. Plaintiff saw Goddard stack the tires along the north wall and thereafter plaintiff proceeded to mount them on Cordray's trade-in vehicle. Plaintiff further testified that he was working with one of the tires delivered by Goddard when the explosion occurred. Three of plaintiff's co-workers testified that, to their knowledge, defendant was the only company that delivered tires to Cordray.

At trial defendant, through its officers Craig and William Goddard, introduced its invoices and billing compilation for August 1967 which indicated that, at most, it delivered two 10:00 x 20 tires to Cordray on the day in question. Eddie Goddard testified that he recalled delivering one tire to Cordray on the day of the accident. This recollection was not of independent origin, but was based on a review of the invoices. Cordray's president, Lester Cordray, testified for defendant that the tires were not segregated according to supplier at Cordray. Cordray also testified that he could not determine which company delivered the tire that injured plaintiff.

On appeal defendant contends that the jury verdict is contrary to the manifest weight of the evidence; that the court erred in permitting plaintiff's counsel to read to the jury an answer to an interrogatory which had not been introduced into evidence; that the court improperly instructed the jury; that certain trial errors deprived defendant of a fair and impartial trial; that the court erred in allowing a layman to express an opinion as to the cause of the explosion; and that the court erred in allowing an opinion from plaintiff's expert witness as to the explosion causation in response to a hypothetical question.

Defendant's initial contention is that the verdict of the jury in favor of plaintiff is against the manifest weight of the evidence. The core of defendant's argument is that the record contains no substantial evidence that defendant delivered the tire involved in the occurrence to Cordray. Plaintiff's testimony is the only evidence directly linking defendant to the tire that exploded, and defendant suggests that brain injury suffered in the explosion renders plaintiff's testimony inherently unbelievable. Defendant further maintains that in view of its business records impeaching plaintiff's testimony, the verdict lacks evidentiary support and is clearly erroneous.

• 1-3 A verdict is against the manifest weight of the evidence when an opposite conclusion is clearly apparent (Purdom v. Swanson (1970), 130 Ill. App.2d 549, 263 N.E.2d 883), or the finding of the jury appears to be unreasonably arbitrary and not based on the evidence. (Cora v. Chicago Housing Authority (1971), 131 Ill. App.2d 23, 268 N.E.2d 497.) If there is evidence which, if believed, would support the verdict, the trial court or a reviewing court should not interfere with the result. In the present case, we are unable to say that a verdict in defendant's favor was required by the evidence. Plaintiff testified that he observed defendant's driver deliver a particular type of tire, noticed where the driver stacked the tires, and was in the process of mounting one of those tires when the explosion occurred. We do not find the jury's acceptance of plaintiff's testimony and rejection of defendant's evidence, including its exhibits, to be so unreasonable or arbitrary as to require judicial interference with the verdict. There is always a possibility that corporate records are in error, and they deserve no special presumption of credibility as compared to opposing testimony of a witness. (Gorman v. St. Francis Hospital (1965), 60 Ill. App.2d 441, 208 N.E.2d 653.) Defendant argues that because plaintiff suffered cerebral injury in the accident his testimony is inherently unbelievable and cannot support the verdict in his favor. When plaintiff was called as a witness, defendant offered no objection that he was incompetent to testify. The question of plaintiff's competency was therefore waived (In re Estate of Marcucci (1972), 5 Ill. App.3d 484, 285 N.E.2d 141), and the weight to be accorded his testimony was for the jury. We also note that at trial defendant attempted to minimize plaintiff's injuries, and introduced evidence that he had made a good recovery. We conclude that the jury was in the best position to determine the truth of the conflicting testimony. The verdict was not against the manifest weight of the evidence.

We shall next consider defendant's contention that various errors committed during trial deprived it of a fair trial and require reversal. Defendant urges that an emotional outburst by plaintiff required declaration of a mistrial; that comments made by plaintiff's counsel during voir dire and final argument were improper; that certain admissions of fact were improperly used; and that an exhibit prejudicial to defendant was delivered to the jury during deliberations.

The record discloses that plaintiff, while being cross-examined about events immediately preceding the explosion, became disoriented and called out for his wife. The judge immediately ordered the jury out of the courtroom. Mrs. Nowakowski came up to the witness stand and snapped her fingers in front of plaintiff's face. Defense counsel requested a mistrial, initially maintaining that the entire incident took place in full view of the jury. The trial court, however, stated that the finger snapping took place outside the presence of the jury. Defense counsel then conceded that Mrs. Nowakowski "started to come up" while the jury was present in the courtroom. Defendant's motion for a mistrial was denied.

• 4 An emotional outburst or other dramatic occurrence, where innocent and partially involuntary, is not grounds for a mistrial unless aggravated and repeated or unless the demonstration unquestionably influenced the jury's ability to try the issues fairly. (Buckler v. Sinclair Refining Co. (1966), 68 Ill. App.2d 283, 216 N.E.2d 14.) The trial court is in the best position to determine this issue and, absent an abuse of discretion, its decision will not be disturbed. (Ellison v. Sinclair Refining Co. (1963), 41 Ill. App.2d 436, 190 N.E.2d 635.) Nothing in the record suggests that the conduct of plaintiff or his wife was intentional or the result of improper motive. The trial court took prompt action in excluding the jury and, having witnessed the entire incident, determined that plaintiff's conduct did not improperly influence the jury. The court did not err in denying defendant's motion for a mistrial.

• 5 During the voir dire, plaintiff's counsel commented to one prospective juror that he believed that the evidence would show severe brain injuries. He commented to another prospective juror that because of the nature of the injury, plaintiff would not attend the entire trial. In both instances, the trial court promptly sustained defendant's objections to the comments. Under the circumstances, we do not find defendant's claim of prejudice to be persuasive.

• 6 During closing argument, plaintiff's counsel expressed his opinion that plaintiff was incapable of telling a lie. Defendant interposed no objections to the remarks, and therefore waived any objection in this court. ...

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