APPEAL from the Circuit Court of St. Clair County; the Hon.
THOMAS P. O'DONNELL, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This case is before our court by virtue of our order granting leave to appeal from an order of the circuit court granting a new trial. The case resulted from an automobile collision which occurred during the early morning hours of April 16, 1978. Rodney Brendel was the owner and driver of one of the cars involved. Brent Simon was the owner, and he and Robert A. Hustava were the occupants, of the second car involved. It was disputed as to whether Simon or Hustava was the driver of the second car.
The action was commenced when Brendel as plaintiff filed a complaint naming both Simon and Hustava as defendants. Simon later filed a counterclaim against Brendel.
Following an initial mistrial, a jury trial was commenced on Brendel's third amended complaint (complaint), and Simon's counterclaim. The complaint alleged that Brendel was operating his vehicle in a proper manner when it was struck by Simon's car and that the accident was the direct and proximate cause of severe injuries to Brendel. The complaint alleged:
"At the time and place aforesaid, defendant, Brent Simon, either individually or by and through his agent, defendant, Robert A. Hustava, or Robert A. Hustava, individually, or both, were operating or in physical control of a motor vehicle * * * and they did so negligently and carelessly operate said motor vehicle as to cause it to strike, hit and collide with the vehicle which the plaintiff was operating."
The counterclaim of Simon alleged that Simon was operating his vehicle in a proper manner and that Brendel's negligent driving caused the accident which resulted in injuries to Simon and the destruction of his car.
At trial, Brendel testified that he could not tell who was driving the Simon vehicle at the time of the accident but that moments after the accident he saw Simon, who was already out of the car, walk from the passenger side of his (Simon's) car to the driver's side, which is where Hustava was located. This testimony was corroborated by plaintiff's occurrence witnesses, Ralph Griffin and Spencer Deleen. Neither Griffin nor Deleen had actually seen the collision, but both of them heard the crash and were at the scene within a short time. Each testified to seeing Hustava slumped behind the wheel of the Simon car.
Also called as a witness for Brendel was Doyle Creek, the police officer who had investigated the accident. Creek stated that when he arrived he found Hustava at the wheel of the Simon automobile, and Simon on the passenger side of the vehicle. According to Creek, Hustava, while he was in the emergency room of the hospital following the collision, admitted to being the driver of the Simon vehicle. Creek testified that on the basis of that admission and his observation of the accident scene, he later took Hustava to the police station where he issued him a citation. Also according to Creek, Hustava never denied having been the driver of the Simon vehicle. A copy of Hustava's subsequent conviction for improper lane usage was introduced into evidence. However, the jury was informed only that as a result of the accident Hustava had been convicted of a "traffic offense." They were not told the precise offense of which Hustava had been convicted.
In addition to evidence concerning his diminished earning capacity, Brendel also introduced the expert testimony of Dr. Guillermo Rodriguez, an orthopedic surgeon who treated him when he was taken to the hospital emergency room shortly after the accident. Dr. Rodriguez testified that Brendel had received a broken leg and injured knee, and extensive therapy and treatment had been required. Dr. Rodriguez predicted a complete but slow recovery. On cross-examination by Hustava's attorney, Dr. Rodriguez was asked questions and gave answers which tended to connect the injuries received by the occupants of the Simon car with a position as either driver or passenger. Brendel's attorney made two objections during the series of questions, one objection was that the line of questions was beyond the scope of direct examination (overruled), and the other, imposed a few questions later, was the general objection, "I object to that" (sustained). The jury was instructed to disregard the question, although the witness had never answered.
Upon redirect examination the attorney for Brendel returned to the same area of examination, asked the following question of Dr. Rodriguez, and received the following answer:
"Q. Now, Mr. Bode asked you about a passenger not getting a rib injury or chest injury. It is possible a passenger can receive a chest or rib injury, isn't it?
A. Nothing is impossible, but in that way — I say what I have been saying is the percentage of trauma in different positions in a car is usually to the passenger. Hurt his lower extremities, dislocate the pelvis and more trauma and face because most of the time they go under the dashboard or they go forward to the windshield. The driver, he goes through the — he have more — be able to be hit in the chest, abdomen and face and extremities, but in that way, that is the percentage, but if you go in a car and it roll over and turn, I cannot say that he was hit in that position in this place."
In contrast to the evidence introduced by Brendel, which sought to establish Hustava as the driver of the second car, both Hustava and Simon testified unequivocally that Simon had been driving at the time of the collision. Simon stated that although he was driving at the time he could not remember the events leading up to the accident. Simon remembered that immediately after the accident he checked the passenger seat to see if Hustava was all right and that after getting Hustava conscious he had Hustava crawl over to the driver's seat in order to get him out of the car because the passenger's door of his car had previously been inoperative. Simon related that before he could get Hustava out, Hustava passed out again, at which point Simon began screaming at Brendel for running into him. Simon did not remember exactly what was said when police arrived on the scene, but he did not believe they ever asked him who was driving his car. Simon stated that he did not become aware that Hustava had been taken to the police station and ticketed until several days later. Simon testified that he had received a broken thumb and four broken ribs and had lacerations and bruises on his knees, but he did not suffer an injury to his head.
Hustava's version of the events corroborated the testimony given by Simon. Hustava stated that prior to the accident the passenger door had been inoperative, so he crawled over from the passenger's seat to the driver's seat, which is where he was sitting when police came to the scene. Hustava denied having told police officers that he was the driver of the Simon vehicle and said he was somewhat surprised when he was ticketed for the collision. Hustava testified that he accepted the ticket without objection because he knew that Simon's driver's license might be revoked if he got another ticket. According to Hustava, Simon never asked him to take the blame and he stayed silent in traffic court and accepted the fine merely because he wanted to get ...