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American State Bk. v. County of Woodford

OPINION FILED NOVEMBER 10, 1977.

AMERICAN STATE BANK, ADM'R OF THE ESTATE OF ROBERT DEAN STIVERS, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

THE COUNTY OF WOODFORD ET AL., DEFENDANTS-APPELLANTS. — TERRY B. SCOTT, PLAINTIFF-APPELLEE,

v.

THE COUNTY OF WOODFORD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Courts> of Woodford and McLean Counties; the Hon. SAM HARROD, III, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal lies from jury verdicts totaling $275,200 rendered in favor of the plaintiffs and against the defendant county of Woodford. The occurrence was a collision on a rural road on March 11, 1973. The alleged negligence was the maintenance of the road by the defendant.

There existed in Woodford County in March 1973, a gravel road running east and west and known as Kappa Road. It was owned by Woodford County but maintained by Palestine Township. Its width varied from 15 to 18 feet with grassy shoulders from 1 to 2 feet wide. It was hilly and just before the accident muddy on account of a recent rainstorm.

At about 5 p.m. on March 11, 1973, Terry Scott was proceeding eastward on Kappa Road in a 1967 Chevelle; about the same time Robert Stivers was proceeding westward in a 1965 Corvair. Stivers' vehicle had as passengers his wife, Patricia, and his children, Rebecca and Robert, Jr. Scott's passenger was one Charles Zimmerman, who is not involved in this litigation. The vehicles collided at the crest of a hill approximately 20 feet high. Robert Stivers was killed; his wife and children were injured. Terry Scott was injured.

The American State Bank, as administrator of the estate of Robert Stivers, Patricia Stivers, individually, and as mother and next friend of the minor children, filed suit against Terry Scott in the circuit court of McLean County. At about the same time, the same plaintiffs filed suit in the circuit court of Woodford County against the county of Woodford and its highway commissioner and Palestine Township and its highway commissioner. In McLean County, Scott filed a counterclaim against the bank and a third-party complaint against Woodford County. The causes were consolidated for trial in Woodford County; Scott's counterclaim was dismissed on his own motion, and trial was had on the two complaints and the third-party complaint. The jury found in favor of all plaintiffs and against Woodford County; it further found in favor of Palestine Township and against the plaintiffs. Verdicts were as follows: (1) Administrator for death of Robert Stivers, $225,000; (2) Scott, $30,000; (3) Patricia, individually, $12,500; (4) Patricia for Robert, Jr., $5,000; and (5) Patricia for Rebecca, $2,700. Post-trial motions were denied and the court entered judgment on the verdicts. This appeal followed.

Plaintiffs' theory against the defendant County was negligence in (a) permitting two-way traffic on Kappa Road whose topography would not permit such traffic; (b) failure to post signs to reduce speed; (c) failure to post signs to keep to extreme right; (d) failure to maintain width to accommodate two passing vehicles; and (e) failure to maintain shoulders so as to permit their use in an emergency. In the trial court defendant County vigorously argued its immunity but that theory has been abandoned in this court.

For purposes of convenience and clarity in this opinion, unless otherwise specifically indicated, "plaintiffs" will be used to designate all members of the Stivers family and Scott, together with the bank as administrator; Woodford County, the only defendant found liable, will be referred to as "County." Further factual matters will be developed in the opinion as may be necessary for better understanding.

The County's brief contains 10 separate issues. On oral argument, counsel for the County informed us that he intended to discuss three extensively, but was not waiving the others. We shall, therefore, take the issues as they appear in the brief, the first three being the ones emphasized in oral argument.

The issues are: (1) denial by the trial court of a motion for change of venue; (2) mention of insurance by a venireman; (3) giving of an instruction regarding road standards; (4) refusal of the trial court to allow evidence of absence of other accidents on the road in question; (5) allowance into evidence of "Road Closed" signs installed one year after the occurrence; (6) admission of movie film of the road; (7) admission of loan agreements; (8) denial of setoff in the amount of the loan agreements; (9) contributory negligence of plaintiffs; and (10) proximate cause. Counsel further informed us that he contested liability as to all plaintiffs but amount of damages only as to the administrator.

I

The County's first contention of error is the refusal of the trial judge to recuse himself on the County's motion.

On March 1, 1976, after the complaints had been on file for about two years, counsel for the County filed a motion for change of venue from the trial judge. The motion was supported by counsel's affidavit that he believed that the judge was prejudiced against him and that the prejudice had become known to him only a few days before. The affidavit set forth no particulars but alleged prejudice only in general terms.

The court held a hearing on the motion. No specifics were elicited at the hearing and plaintiffs' counsel objected on that basis, since the trial judge had theretofore ruled on matters of substance adversely to the County (e.g., County's motion to strike and dismiss plaintiffs' complaint). The court denied the motion.

The controversy revolves about the interpretation of section 3 of the Venue Act (Ill. Rev. Stat. 1975, ch. 146, par. 3). It reads as follows:

"Every application for a change of venue by a party or his attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds."

The parties take diametrically opposite views of the meaning of this statute. County claims that the right to a change is absolute, providing time requirements are met. Plaintiffs claim that specifics must be alleged and proved, if the petition comes after a ruling on a matter of substance. Both sides cite a plethora of cases in support of their respective positions. Rather than burden this opinion by attempting to analyze every case cited, we shall assume that the parties intended compliance with Supreme Court Rule 341(e)(5): "Cases shall be cited as near as may be in order of their importance." Ill. Rev. Stat. 1975, ch. 110A, par. 341(e)(5).

Plaintiffs' first cited case is Caprata v. Black (1970), 127 Ill. App.2d 363, 262 N.E.2d 483. In that case the court said, "We consider this [i.e., presentation of the petition] to have been timely, particularly since on the 13th the judge had merely continued the case and had made no ruling of any substantive issue." 127 Ill. App.2d 363, 366, 262 N.E.2d 483, 484.

The County cites first Swanson v. Randall (1964), 30 Ill.2d 194, 198, 195 N.E.2d 656, 659. There the court said, "It is well settled that a petition for change of venue comes too late when it is presented after the judge has ruled on a substantive issue in the cause. [Citations.] The denial of Rock River's motion to strike was such a substantive ruling, and the petition for change of venue was properly denied."

• 1 It is thus apparent that the authorities for both sides are in agreement, as are all the rest of the cited cases. The right to a change of venue is absolute, if presented before the judge has ruled on any substantive issue. No one seriously quarrels with this proposition. The salutary principle is that one should not be compelled to plead his cause before a judge who is prejudiced, whether actually or only by suspicion, and the right of removal is mandatory if made in apt time and from a single judge in a civil suit. The cases denying a change turn on some different set of facts (e.g., change from too many judges, Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill.2d 247, 311 N.E.2d 673).

However, after a substantive ruling the free gate closes and the one seeking change is put on his proof to demonstrate actual prejudice. This is the correlative salutary principle that one may not "judge shop" until he finds one in total sympathy to his cause. Any other rule would spell the immediate demise of the adversary system.

• 2 The Fifth District Appellate Court was faced with a case almost identical to the one at bar in Templeton v. First National Bank (1977), 47 Ill. App.3d 443, 447, 362 N.E.2d 33, 36. After reviewing the legislative history of section 3 of the Venue Act, that court said, "We do not think that the words `may be presented upon such grounds' indicate a legislative intention that the right to a change of venue in such a case be absolute. We think rather that the proviso should be interpreted to require specific allegations to support the charges of prejudice, and that a petition presented after the trial or hearing has begun, or after the judge to whom it is presented has ruled on a substantial issue in the case, should be granted only in the sound discretion of the court." We concur with the Fifth District.

In the case at bar, no specific allegations were presented to the trial judge, either in the affidavit or at the hearing held on the petition. Therefore, his discretion in denying the petition will not be disturbed.

II

The County's second principal contention of error concerns a colloquy which occurred during voir dire.

• 3 Unfortunately, no record was made of the voir dire until after the incident in question had occurred and had been ruled upon by the trial judge. Under these circumstances we would normally be privileged to say that the point has not been properly preserved for review and resolve it against the appealing party. Augustine v. Stotts (1963), 40 Ill. App.2d 428, 189 N.E.2d 757; Solomon v. City of Evanston (1975), 29 Ill. App.3d 782, 331 N.E.2d 380.

However, the abstract contains an in-chambers conference among court and counsel and although far from complete, it contains enough information that we may make a limited examination of the problem.

The conference opened with a statement by the trial judge as follows:

"We have been selecting the jury without a record on voir dire, and four are sworn and working on the second panel, and young woman named Mary Isoardi (I-s-o-a-r-d-i) just replaced an excused juror, and the Court asked her whether based on all of the questions she had heard asked all the other jurors, * * * And in response * * * she said, * * * that her father runs an insurance agency in Roanoke and that she ...


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