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Clamage v. Shapiro

OPINION FILED APRIL 11, 1977.

LESTER CLAMAGE, PLAINTIFF-APPELLEE,

v.

DONALD SHAPIRO, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. JUSTICE BUA DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant Donald Shapiro from a judgment entered in the Circuit Court of Cook County on a jury's verdict of $20,000 in favor of the plaintiff, Lester Clamage. Defendant presents three issues for review: (1) whether a certain statement by the court in the presence of the jury on a contested material issue of fact was prejudicial error; (2) whether the impeachment of defendant by plaintiff's counsel on the issue of due care and counsel's comment in closing argument on defendant's veracity were prejudicial errors; and (3) whether plaintiff's counsel sought to imply the existence of insurance during closing argument to the jury. The relevant facts follow.

On April 17, 1972, while crossing Lawndale Avenue in the Village of Skokie, plaintiff was struck in the right leg by an automobile operated by the defendant. At the time of the accident the defendant was backing up in order to pull out of a parking space. As a result of being struck plaintiff suffered injuries to his right foot and hip which required surgery. Thereafter, plaintiff was required to wear specially designed shoes which compensated for swelling. In addition, plaintiff's big toe had curled under his other toes, causing him to limp.

Subsequently, plaintiff filed a personal injury action against the defendant in the Circuit Court of Cook County, and the case was tried before a jury. While the plaintiff was testifying on direct examination, the following colloquy occurred:

"Mr. Cooney [plaintiff's attorney]: Following the accident, before the accident, did you have a limp.

A: No, sir.

Q: Did you have that problem with your toe curling under the big toe before the accident?

A: No, sir.

Q: Do you still have that problem?

A: Yes, sir.

Q: Do you have a limp now?

Mr. Mavrias [defense counsel]: Objection, your Honor. That is the same area. He has answered no physical difficulties. Counsel didn't like the answer and he is asking —

Mr. Cooney: I like the answer, but the man doesn't complain. We have to drag it out of him.

Mr. Mavrias: He has answered it three or four times.

Mr. Cooney: Let him answer again in fairness to him. It is his case.

The Court: Proceed. The jury already knows he has a limp anyways, Mr. Cooney.

Mr. Cooney: Well, that's what I mean. You limp a little, do you?

The witness: Yes, sir."

Thereupon, defense counsel, in camera, moved for a mistrial based on the court's comment, in front of the jury, that the plaintiff has a limp. The court denied the motion and the trial proceeded. Various witnesses were called and eventually the defendant testified. He stated on direct examination that he backed his car up with his foot on the brake. Mr. Cooney then cross-examined defendant in relevant part as follows:

"Q: When you got into your car, you saw Mr. Clamage getting out of his car, is that right?

A: When I — pardon?

Q: When you got into your car, you saw Mr. Clamage getting out of his car.

A: When I got into — no.

Q: Isn't that what you said on your deposition?

Mr. Mavrias: Objection, Judge, that is not the proper way to ask him. He should read the question and read the answer.

The Witness: I saw Mr. Clamage once.

Mr. Mavrias: Mr. Shapiro, just a minute, Judge, that is not the proper form.

The Court: All right.

Mr. Cooney: Well, I will ask you: Did you see him getting out of his car as you got into your car?

A: I saw him out of the car, but I don't remember what terms, if it was when I got in or when I got out.

Q: Well, did you answer these questions under oath? I am on page 17.

`Was he in or out of the car?

I think, if my recollection is correct, he was just getting out. And where were you in reference to your car, at that ...


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