APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
FIEDLER, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 26, 1977.
This appeal is from an order of the circuit court of Cook County in a personal injury action, granting the Chicago Transit Authority (C.T.A.) a new trial after a jury verdict for $31,000 was returned in favor of the plaintiff, Dolly Harrison. Pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306), the petition of Dolly Harrison for leave to appeal the order granting a new trial was heretofore allowed by this court.
The issues presented for review are whether the claimed prejudice, for which a new trial was ordered, was waived and whether the trial judge abused his discretion in ordering a new trial. The pertinent facts follow.
During the personal injury trial in the court below, and while cross-examining a doctor, defense counsel held in his hand certain notes of a treating nurse. Plaintiff's attorney objected to what looked like a question being read from the notes, by saying:
"Your Honor, I would object in that he is reading and he has inferred it is in the nurse's notes. The doctor's own history indicated and we do not deny that the mass did come two or three weeks before, but I would object to Mr. Stanton's lying, of trying to examine this man by putting in questions of that nature.
Mr. Stanton: Your Honor, is the Court going to permit counsel to make that type of statement in front of the jury, using `lying'?
Mr. Pendergast: I said `line,' l-i-n-e, your Honor.
The Court: The Judge is duty-bound to protect all the lawyers in his courtroom and the jurors and all the officers of the Court. I will strike that. It is not to be repeated."
Later, during closing arguments, plaintiff's counsel again inferred that defendant's attorney was a liar, by saying:
"I think that we live in a time where the very nature of my profession is in dispute as to the conduct of lawyers and attorneys.
I do not think that personality should interfere in a trial. I know of no name calling of anyone in front of the jury. Now, I remember taking exception to that, ladies and gentlemen of the jury, that statement that indicated Mr. Stanton was a liar, in front of the jury.
Now, whether or not I think that he is a liar, is something that you ...