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Zindrick v. Drake

OPINION FILED AUGUST 16, 1979.

MICHAEL ZINDRICK, PLAINTIFF-APPELLANT,

v.

RICHARD DRAKE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Plaintiff, Michael Zindrick, and defendant, Albert Drake, were the drivers of automobiles involved in a head-on collision on Illinois Route 59 in the early morning of January 26, 1974. Zindrick, Drake and two passengers in the Zindrick car were injured and a third passenger in the Zindrick car was killed. Zindrick, his two surviving passengers and the estate of the third passenger sued Drake. The jury returned a verdict finding for defendant Drake against all plaintiffs and signed a special interrogatory finding plaintiff Zindrick guilty of contributory negligence.

The major issue in the case was concerned with which auto, Zindrick's or Drake's, was all or partly on the wrong side of the road when the accident occurred. Zindrick testified that Drake's car had swerved into his (Zindrick's) lane. Because of injuries suffered in the accident, Drake had no recollection of the incident at all. Zindrick's two passengers still alive were asleep at the time of the accident and therefore could not testify as to who was at fault. The driver of a third auto which struck the Drake car after the accident was also unable to offer direct evidence on where the accident occurred. Dempsey Leith, a Lake County deputy sheriff, arrived on the scene 26 minutes after the accident, after several other police and emergency vehicles had done so, to see if he could determine the point of collision and how the accident occurred. He testified that he had found the automotive debris caused by the accident only in the northbound lane. This was the direction in which defendant Drake was driving at the time of the accident.

Only plaintiff Zindrick has appealed. He does not contend that the verdict was against the manifest weight of the evidence but raises six issues relating to the conduct of defense counsel and evidentiary rulings by the trial court.

First, Zindrick contends that the defense counsel's references to the ad damnum clauses in plaintiffs' pleadings constitute prejudicial error. In his opening statement defense counsel stated his client was "being sued for about $600,000, I believe." An objection was made and sustained to this comment and the jury was instructed to disregard it. A motion for mistrial was made at the same time but was denied. Subsequently, the three surviving plaintiffs were all questioned by defense counsel as to the amount of the ad damnum in their respective complaints and the attorney for the estate of the non-surviving passenger announced the amount in his ad damnum in open court. Defense counsel also commented upon the ad damnums in his closing argument when he remarked that he felt entitled to lose his temper when his client was "sued for $850,000 and when people asked the jury for $420,000."

Zindrick contends that this series of events represents an improper defense strategy which severely prejudiced the jury. He points to the general rule that pleadings are usually not admissible unless they are admissions. Defendant Drake contends that the ad damnum clause of a pleading may be admissible against the pleader on the issue of his credibility and cites the following language of the court in Grimm v. Carallis (1968), 99 Ill. App.2d 404, 407, 241 N.E.2d 637, 639:

"It has become common practice in personal injury suits to exaggerate the extent of injuries and to pray for damages grossly in excess of any that might reasonably have been incurred. The fact that the practice is common does not however make it proper. Such statements when controverted by the evidence may be considered by the jury as affecting the plaintiff's credibility."

• 1-3 We think the rule expressed by Grimm is a good one. Although it may well be modern practice to pull a damage figure out of a hat for purposes of the ad damnum, a complaint is still supposed to set forth allegations believed to be true. If, due to investigation and discovery, plaintiff later finds out that his good faith estimate of damages was too high, he can and should amend his complaint to reflect a lower total. The questioning of the plaintiffs and the comments in closing argument were clearly proper under Grimm, but counsel's comments in his opening statement were not. One cannot put the credibility of a witness into issue before that witness has in fact testified, even if one is planning to subsequently call that witness. However, the trial court properly sustained the objection to the comments about the ad damnum in the opening argument and the jury was instructed to disregard such remarks. This action was sufficient, particularly in light of the fact that the amounts were properly introduced later.

• 4 The second issue raised by Zindrick relates to testimony by a neurosurgeon that Drake was unable to remember the accident because it had left him with brain damage and a significant loss of memory. Zindrick contends that the neurosurgeon should not have been allowed to testify because details of Drake's brain damage were more prejudicial than probative, particularly since plaintiffs were willing to stipulate or admit that whatever injuries Drake sustained in the accident were the cause of his lack of memory. The trial court was clearly correct as to the question of a stipulation. The basis of any stipulation is a voluntary agreement between the parties, each party having the right to choose not to enter into such an agreement. Admissions, on the other hand, while not requiring any formal agreement by the opposing party, go only to one's own conduct. One can admit liability in pleadings, but one cannot admit, at least in the context of judicial admissions, what the opposing party's witness will testify to.

• 5 As to the prejudice versus the probative value of the neurosurgeon's testimony, this is a question of the admission of evidence and thus was one for the normal discretion of the trial court. It is the general rule in this country that:

"* * * evidence which will only serve to prejudice the minds of the jury is properly excluded. In weighing the tendency of offered evidence to prove an issue in dispute against its tendency to produce passion and prejudice out of proportion to its probative value, the matter is largely within the sound discretion of the trial court." Hunter, Trial Handbook for Illinois Lawyers § 33:12 (4th ed. 1972), citing 29 Am.Jur.2d Evidence § 260(____).

We find no abuse of discretion in the trial court's finding that the testimony of the neurosurgeon was not improperly prejudicial as it was probative on the question of why Drake could not remember and was not overly long, detailed, gruesome or otherwise inflammatory.

• 6 The third issue raised relates to the testimony of deputy sheriff Leith, Zindrick contending it was error to allow Leith to testify to the location of the accident debris. This contention is based on the rule that:

"Testimony based on an inspection after the event in question is not competent unless evidence is also introduced to show that the conditions inspected had remained unchanged in the interim." (La Salle National Bank v. ...


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