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Hooper v. Mizyad

OPINION FILED JULY 27, 1981.

EDDIE HOOPER, PLAINTIFF-APPELLEE,

v.

MANEY MIZYAD, INDIV. AND D/B/A CROWN FOOD STORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. ROSENBERG, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

In this personal injury case, the jury returned a verdict in favor of Eddie Hooper (plaintiff) and against Maney Mizyad, individually and doing business as Crown Food Store (defendant) for $35,000. By answer to special interrogatory, the jury found plaintiff free of contributory negligence. Defendant has appealed.

In this court, defendant contends the trial court erred in calling two witnesses as court's witnesses; the testimony of a police officer was incompetent hearsay and the conduct of plaintiff's counsel during trial constituted prejudicial error.

The parties have contended themselves with brief statements of fact required to pass upon the above contentions. On December 17, 1977, plaintiff was approximately 77 years old. He entered a neighborhood store conducted by defendant to purchase some cigarettes. Plaintiff was a regular customer of the store. Plaintiff was in the store for 4 to 5 minutes. Plaintiff entered and turned to the left. He was the third person in line at the checkout counter. When plaintiff walked to the counter, approximately 5 or 6 feet, he noticed nothing unusual on the floor. He saw nothing on the floor in the counter area. The clerk who waited on plaintiff, Naief Salem, was a nephew of defendant. Salem handed the cigarettes to plaintiff. Plaintiff testified he saw no one come up behind him at that time. Plaintiff stated that, as he turned to leave, he fell over some bags on the floor. Plaintiff did not place these bags on the floor.

I

Defendant first urges the trial court improperly permitted plaintiff to call two witnesses as court's witnesses. The witnesses in question were Adel Abdallah and Naief Salem. Both were employed in defendant's store.

Each of these witnesses had given statements to plaintiff and to defendant. Plaintiff took statements before a court reporter. Plaintiff's counsel had typewritten statements of both interviews. Defendant's employees took statements in handwriting. The difficulties attendant upon the trial are compounded by the fact that neither of these witnesses was fluent in English. The trial court, who followed the proceedings with complete diligence, commented several times upon the difficulties these witnesses had in the use and understanding of English.

The record shows counsel for plaintiff told the trial court Abdallah would be the next witness. The trial court then informed the jury that "Abdallah is being called as the court's witness." The court did not examine Abdallah except to ask if he understood and usually spoke English. Both questions were answered affirmatively. Counsel for plaintiff then proceeded to question the witness as on direct examination. The witness said he was "9 yards" away when plaintiff entered the store. He testified plaintiff tripped and fell on a bag near plaintiff's foot. Counsel for defendant then proceeded to cross-examine Abdallah. Plaintiff's counsel used the out-of-court statements of the witness in this procedure.

The witness Naief Salem was not called by plaintiff. He was called by defendant. Defendant's counsel stated:

"By order of court, your Honor, this gentleman will be designated as the court's witness."

However, counsel for defendant then proceeded to direct examination of the witness. Salem testified he sold the cigarettes to plaintiff and:

"He take the cigarettes and put them in the pocket. Next thing he know and go flop."

Counsel for plaintiff then proceeded to cross-examine the witness. This ...


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