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Rowley v. Rousseau

OPINION FILED FEBRUARY 11, 1980.

JUDITH ROWLEY, PLAINTIFF-APPELLANT,

v.

JONNI R. ROUSSEAU, DEFENDANT-APPELLEE. — (JAMES WALKER, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of McLean County; the Hon. WAYNE C. TOWNLEY, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

The plaintiff is appealing from a jury verdict finding for the defendant and against the plaintiff in a personal injury case arising out of a two-car collision. At the plaintiff's trial, her counsel, James Walker, was found to be in direct contempt of court and was fined $350. Walker appeals the finding of contempt. The two appeals have been consolidated.

In addition to plaintiff's counsel's appeal of the trial court's order finding him in contempt, this appeal presents us with the following issues: (1) Whether the plaintiff was prejudiced by the trial court's ruling on the plaintiff's objections to the defendant's closing argument; (2) whether the trial court erred when it refused to direct a verdict for the plaintiff; (3) whether the trial court erred in denying plaintiff's motion for mistrial which was made because defense counsel elicited testimony that plaintiff had previously undergone psychiatric treatment; (4) whether the trial court erred when it only assessed plaintiff's costs against defendant (rather than enter a default judgment on plaintiff's behalf) for defendant's failure to comply with discovery.

We first consider the appeal from the contempt order.

The court's order on the defendant's pretrial motion in limine clearly precluded the parties from mentioning to the jury that the defendant was insured. Plaintiff's counsel during his closing argument stated, "I suggest that someone has dropped a file in front of Mr. Wollrab and said look, go defend this case, * * *." As a result of this comment, the judge reminded plaintiff's counsel outside of the presence of the jury of the motion in limine about insurance, and warned him that his argument was coming close to disobeying the motion in limine.

During the defendant's closing argument, the following exchange took place:

"MR. WOLLRAB: * * *

So, you'll be given another instruction that is going to tell you if that — if you find — the first vote you'll take, I assume, will be on the question of liability and if you find that Jonni, you're not going to place this lady's injuries on her — .

MR. WALKER: Your Honor, I'll object. No one is placing the injuries on her. They are placing them on State Farm Mutual Automobile Insurance Company who is defending this case on her behalf.

THE COURT: Mr. Walker, you have deliberately attempted to interject in this case an error which the Court will deal with summarily at a subsequent time. The jury is to disregard this completely. This is an action between these two parties and let's have no further outbursts of that nature. The Court considers that to be direct contempt of this Court."

Later, during defendant's closing argument, the following exchange occurred:

"Mr. WOLLRAB: * * *

So, I think you've got a question, really, as to whether or not this hospitalization was really necessary. It was put on really for the purpose of something that was broken and it wasn't broken, and then the other answer would be that it was put on to cover up pain and — should Jonni be held responsible for damages for money for pain that — .

MR. WALKER: Your Honor, again, we object. We have not indicated that Jonni will be held responsible for any money damages in this case. The evidence is quite to the contrary.

THE COURT: This is not the state of the situation, Mr. Walker, and you're not entitled to proceed in that manner, and ...


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