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Batterton v. Thurman





APPEAL from the Circuit Court of Fulton County; the Hon. CHARLES H. WILHELM, Judge, presiding.


Rehearing denied May 20, 1982.

Plaintiff, Robert Batterton, brought suit against defendant, Clifford Thurman, for assault and battery. The two-count complaint sought compensatory and punitive damages. After a three-day trial, a Fulton County jury returned a verdict for plaintiff. Compensatory ($13,000) and exemplary ($33,000) damages were awarded. Defendant's motion for a remittitur was granted, decreasing the punitive damage award to $10,000. Plaintiff appeals the allowance of a remittitur (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(ii)). Defendant appeals from the general judgment entered on the verdict and the denial of his motion for a new trial.

On February 6, 1978, Mr. Thurman struck plaintiff in the face with his fist. Mr. Batterton's jaw broke in two places. The genesis of the striking was a verbal dispute over the death of several hogs owned by Mr. Thurman. Plaintiff resided in a farm dwelling which he rented from defendant. On that farm, Mr. Thurman kept hogs. According to defendant, plaintiff's dog killed the hogs. Plaintiff, on the other hand, said the hogs were killed by coyotes frequenting the area.

Trial testimony reflects that the parties had opposite views as to what transpired on the day plaintiff was injured. Both agreed they conversed outside the Batterton dwelling. Batterton showed Mr. Thurman a letter wherein Thurman's insurer wrote Mr. Batterton it would not pay for the loss of the hogs. Plaintiff reiterated his dog did not kill the hogs. Then, either Thurman began pummelling plaintiff, or, according to Mr. Thurman's self-defense theory, Mr. Batterton began pushing him and slugged him in the neck. After that defendant had no recollection of what happened, until, as he testified:

"* * * I found myself just standing there. I looked down and there Bob laid. * * * I was — there I was, and I said, `Christ, what have I done now?' I thought I'd killed him. He wasn't breathin'. His eyes was [sic] closed — completely out * * *."

Eventually, Mr. Batterton came to. Surgery, required to repair the fractures, was partially successful. Plaintiff, a heavy equipment operator at a coal mine, lost 400-500 work hours. His hourly wage was about $10. At the time of trial he still experienced bouts of dizziness, headaches and a popping sound in his ears. Medical bills approximated $3,000.

Because of the incident, Mr. Thurman was charged with the criminal offense of battery. Following a period of court supervision, an order of expungement was entered which impounded that court record. Judge Bath, who presided at those proceedings, was allowed to testify in the case at bar over defendant's objection.

This appeal has seven issues: (1) Were admissions of defendant from his expunged criminal case properly admitted? (2) Was refusal to allow defendant's character witness testimony proper? (3) Did prejudicial closing argument by prosecutor occur? (4) Was a special interrogatory properly given? (5) Was a certain jury instruction on punitive damages properly given? (6) Were the verdict forms prejudicial? and, (7) Was the trial court correct in ordering a remittitur?

On the second day of the civil trial, plaintiff filed a motion to open up the expunged criminal case file charging Mr. Thurman with battery. Judge Bath presided at those proceedings. The motion was allowed. Judge Bath then testified in the civil trial from the criminal file's docket sheet and read those facts to which Mr. Thurman had stipulated. In that criminal cause Mr. Thurman did not plead guilty but admitted striking the plaintiff, or those facts necessary to sustain a criminal battery charge. Judge Bath could not personally recall the case, Mr. Thurman, or the matters the cause entailed.

On appeal, defendant urges allowing such testimony was error since the trial judge had no jurisdiction to remove the criminal case file for plaintiff's benefit without notice to defendant. He also maintains such hearsay testimony was inadmissible since nonprobative and unduly prejudicial. We disagree.

• 1 The trial judge was not overruling the expungement order. The latter merely deleted the defendant's arrest record and other identifying materials from police records. That order is still valid and binding. Plaintiff's motion did not seek identification information but only those facts which defendant admitted pertaining to the criminal battery charge. Judge Bath did not read from such arrest records but only from the court's own docket sheet as well as the charging instrument and defendant's response thereto. Although defendant now claims surprise because of plaintiff's motion, this contention is belied by his failure to indicate unpreparedness to the trial judge either orally or by moving for a continuance.

Defendant's contention that such testimony was prejudicial and without probative value is unpersuasive. The ramifications of an order of supervision may be different than a criminal conviction or plea of guilty. (Smith v. Andrews (1964), 54 Ill. App.2d 51, 57-61.) We perceive no error in the manner in which Judge Bath's testimony was introduced. The scope of such testimony was limited to prior admissions of fact. In order for Mr. Thurman to be eligible for supervision he had to stipulate to the facts underlying the criminal battery charge or plead guilty to the offense (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-1(c)). He chose the former. In so doing he made a binding admission to the fact he struck plaintiff and injured him. In other words, he indicated his acts amounted to battery in order to obtain favorable terms as to punishment. (People v. Bodine (1981), 97 Ill. App.3d 42, 45.) Such an admission is recognized by the majority of jurisdictions as being admissible in a subsequent civil trial. (Annot., 90 A.L.R.3d 1173, 1177 (1979).) We think such a rule of evidence manifests logic and common sense. Thus, we adopt it.

During trial Mr. Thurman sought to introduce character evidence, through the testimony of Richard Hopkins, that defendant was genial and law-abiding. Plaintiff's objection was sustained. ...

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