APPEAL from the Circuit Court of Cook County; the Hon.
RUSSELL R. DeBOW, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
After being injured in a two-car collision while passengers in Lillian Cook's automobile, plaintiffs, Lillian Casson and Josephine Pustz, filed suit against Gordon Nash, the driver of the other vehicle, alleging that their personal injuries were directly caused by Nash's negligence. Following a jury trial, a verdict was rendered in favor of Nash, and the trial court entered judgment on this verdict. Plaintiffs then filed a motion for judgment notwithstanding the verdict and for a trial on the issue of damages or in the alternative for a new trial on all issues. This motion was denied in its entirety by the trial court.
In this appeal plaintiffs raise the following contentions: (1) that the trial court erred in denying plaintiffs' motion for summary judgment in which plaintiffs asserted the doctrine of estoppel by verdict; (2) that plaintiffs were denied a fair trial when the trial court allowed defense counsel to inform the jury that plaintiffs' personal injury action against Lillian Cook had been dismissed because she loaned each plaintiff a certain sum of money and when the court refused to admit into evidence a photograph depicting the damage sustained by the right side of the vehicle in which plaintiffs were riding; (3) that the jury's verdict in Nash's favor was against the manifest weight of the evidence because Nash's negligence was established as a matter of law; and (4) that defense counsel's closing argument was prejudicial because it contained facts and inferences not supported by the evidence elicited at trial.
On January 25, 1972, plaintiffs were passengers in an automobile driven by Lillian Cook when it was struck by Nash's vehicle. Three lawsuits were filed as a result of this accident:
Suit 1 Nash sued Cook. However, this suit had been settled and dismissed when the present matter went to trial.
Suit 2 Cook sued Nash (Cook v. Nash, Docket No. 73 L 1835). This suit was tried before a jury one week prior to the commencement of trial in the instant case. Casson, Pustz, Cook and Nash testified and were cross-examined during this proceeding. The jury returned a general verdict for Cook but stated in a special interrogatory that Cook was contributorily negligent. By the time trial in the present case had begun, judgment had been entered on the special interrogatory for Nash.
Suit 3 The present matter before this court. Casson and Pustz sued Cook and Nash. Prior to trial, Cook was dismissed as a defendant because she executed a separate loan agreement with each plaintiff.
Before trial in the present case, plaintiffs made a motion for summary judgment in which they asserted the doctrine of estoppel by verdict. Plaintiffs argued that the jury's general verdict against Nash in Suit 2 should estop the defendant from raising the issue of his negligence in a subsequent suit. The trial court denied the motion.
Casson and Pustz also presented a motion in limine requesting that Nash's attorney be precluded from referring to the loan agreements between Cook and the two plaintiffs. However, the court ruled that it would permit counsel for both parties to inquire into these transactions. The following testimony was then heard:
Pustz testified that Lillian Cook picked her up for work at approximately 7:15 a.m. on June 25. Casson was also in the Cook vehicle at this time, and she was seated in the front passenger seat. Pustz sat in the rear seat directly behind Casson. In order to get to their place of employment, Cook drove her vehicle northbound on Ashland Avenue toward 119th Street.
At its intersection with 119th Street, Ashland Avenue consists of four northbound lanes. However, the far left lane is a left turn only lane. 119th Street has two eastbound lanes and two westbound lanes which are separated by a concrete median strip. There are traffic control lights at this intersection.
Pustz stated that as they approached the intersection, traffic on Ashland Avenue was light, and the weather was clear and cold. She estimated that the Cook automobile was traveling at a speed of 20 to 25 miles per hour at this time, and she said that the car was in the second lane from the left. When Cook's vehicle was approximately 20 or 25 feet south of the intersection, Pustz noticed that the traffic light on the northwest corner was green for Ashland Avenue traffic. However, she did not look at this light again. Pustz further testified that she caught a glimpse of Nash's car prior to impact. She stated that the Cook vehicle had almost passed through the intersection when it was struck in the right side. After the collision, Cook's automobile continued forward and hit a ramp abutment.
Lillian Casson confirmed Pustz's testimony concerning the speed of Cook's vehicle and stated that the host driver was driving in her normal manner prior to the collision. Casson testified that she did not notice the traffic lights as they approached the intersection. However, once in the intersection she saw Nash's car coming toward Cook's automobile at approximately 40 to 45 miles per hour from about 20 to 25 feet east of Ashland Avenue. Casson estimated that the Cook vehicle was even with the light standard in the center of 119th Street when she first saw defendant's automobile and was almost across 119th Street when the collision took place.
Nash testified that he was driving westbound on 119th Street toward Ashland Avenue prior to the collision. He estimated that his highest rate of speed on 119th Street was 30 to 35 miles per hour and stated that he was in the left lane next to the concrete divider just before reaching the intersection. Nash first observed the intersection's traffic light when he was approximately one and one-half blocks east of the crossway, and at this time the light was red for westbound traffic. However, this light changed to green when defendant was about 150 feet from Ashland Avenue. Nash then noticed eastbound traffic on 119th Street and observed an eastbound car attempting to make a left turn onto Ashland. Nash stated that he slowed down upon entering the intersection; that the traffic light for westbound traffic was green at this time; that he did not look to his left; that he never saw the Cook vehicle prior to colliding with it; that he attempted to apply his brakes but was unable to do so; and that the entire front end of his vehicle came into contact with the right side of Cook's automobile. Upon impact, Nash's car stopped and spun around to the north.
A co-worker was following Nash in his automobile and witnessed the collision. The co-worker testified that he was 15 feet behind defendant's vehicle when it entered the intersection; that the traffic light for westbound traffic was green at this time; that he did not see Cook's automobile prior to the impact with Nash's car; and that the collision took place between the right and left westbound lanes of 119th Street. This witness further stated that the brake lights of defendant's car did not go on at any time before the collision, and he confirmed Nash's positioning of his vehicle after the accident. Lastly, the co-worker said that the doors on the right side of Cook's vehicle were damaged.
An attendant at a service station located on one of the intersection's corners also witnessed the collision. He testified that the accident took place in the middle of the intersection. As soon as the attendant observed the two automobiles collide, he looked at the intersection's traffic light and observed that it was green for westbound traffic on 119th Street.
Initially plaintiffs argue that the trial court's denial of their summary judgment motion was improper. Plaintiffs contend that the general verdict for Cook in Suit 2 is a final determination that Nash was negligently operating his motor vehicle when it collided with the automobile in which they were passengers; that such determination is not contravened by the jury's special finding of contributory negligence on the part of the host driver; and that for these reasons the trial court should have precluded Nash from relitigating the issue of his liability in the present matter. In support of this argument plaintiffs point out that Nash had ample opportunity in the second suit to cross-examine plaintiffs' witnesses and to present witnesses in his own behalf.
• 1 It is well established that after an evidentiary trial a prior order denying a motion for summary judgment is not reviewable on appeal because the result of such denial merges with the trial that follows. (Simon v. Jones (1st Dist. 1968), 96 Ill. App.2d 1, 5, 238 N.E.2d 259, 261.) Since this matter is not properly before this court, plaintiffs' arguments concerning the denial of the summary judgment motion fail. However, we deem it important to consider generally plaintiffs' contention that the doctrine of estoppel by verdict applies to the issue of Nash's negligence.
• 2 The doctrine of res judicata is that once a final judgment is rendered by a court of competent jurisdiction, such judgment must be deemed conclusive as to all rights of the parties and their privies regarding questions actually litigated and those questions which might have been raised in a subsequent suit based on the same cause of action. Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 426-27, 186 N.E. 152, 155-56.
• 3 Estoppel by verdict is but another branch of the doctrine of res judicata, and it is based on the same principle of law that is, that a matter once adjudicated by a court of competent jurisdiction cannot again be controverted. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 201, 64 N.E.2d 450, 452.) Specifically, estoppel by verdict provides that where a particular question or fact has been adjudicated in a former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties or their privies, its adjudication in the first cause will, if properly presented and relied on, be conclusive of the same question in the later suit, irrespective of whether or not the cause of action is the same in both suits. Hoffman v. Hoffman (1928), 330 Ill. 413, 417, 161 N.E. 723, 725.
• 4 For the doctrine of estoppel by verdict to be applicable, it is not necessary that the parties have been arrayed on opposite sides in the prior litigation or that formal issues have been drawn up between them. (Lynch v. Chicago Transit Authority (1st Dist. 1975), 62 Ill. App.2d 220, 222, 210 N.E.2d 792, 793.) However, in Illinois it is required that the issue decided in the prior adjudication be identical with the one presented in the case under review; that the party against whom the estoppel is asserted was a party or in privity with a party to the prior litigation; and that there has been a final judgment on the merits in the former suit. Riley v. Unknown Owners (1st Dist. 1975), 25 Ill. App.3d 895, 899, 324 N.E.2d 78, 81; but see In re Hutul (1973), 54 Ill.2d 209, 213, 296 N.E.2d 332, 334, cert. denied, 414 U.S. 1040, 38 L.Ed.2d 331, 94 S.Ct. 541.
The determinative question in the instant case is whether Nash operated his motor vehicle in such a negligent manner that he caused the collision with Cook's automobile. It is evident that the same issue was also decided in Suit 2. In rendering a general verdict against Nash, the jury must have decided that he was negligent. Besides having been the defendant in the second suit, Nash also is the party against whom plaintiffs are attempting to assert the estoppel. It appears, therefore, that the first two requirements for the application of the doctrine of estoppel by verdict are satisfied.
However, we were informed during oral argument that Cook filed a motion for a new trial in Suit 2. This motion was filed after the entry of judgment for Nash in Suit 3 but within 30 days of the entry of judgment on the special interrogatory in the second suit. The trial court granted the motion.
• 5 Since a new trial has been ordered in Suit 2, a final judgment on the merits has not been entered in that action. Accordingly, the doctrine of estoppel by verdict is not applicable to the issue of Nash's negligence in the present matter because the third requirement for the doctrine's utilization has not been fulfilled.
Plaintiffs' second contention pertains to defense counsel's in-court examination of Casson and Pustz concerning their separate loan agreements with Lillian Cook. As was stated above, plaintiffs' original complaint named Cook as a defendant. The host driver was dismissed from the complaint after she executed a separate loan agreement with each plaintiff. Casson and Pustz were loaned $22,023 and $5,888 respectively. Both agreements provided that the loaned amounts would be repaid to Cook out of the proceeds of any judgment rendered against Nash and that each plaintiff would "use and pursue any reasonable and legal means * * * available * * *" to collect a judgment against defendant. *fn1
After plaintiffs finished their presentation of evidence, defense counsel, while in chambers, stated that he wanted to offer the loan agreements into evidence. Over the objection of counsel for plaintiffs, the trial court ruled that defense counsel would be permitted to ask Casson and Pustz a limited number of questions regarding the nature of these loans. However, the court refused to admit the loan documents into evidence. Defense counsel then called Casson as an adverse witness pursuant to section 60 of the ...