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Huber v. Watts

OPINION FILED DECEMBER 8, 1982.

JEFFREY HUBER, PLAINTIFF-PETITIONER,

v.

JOHNNIE R. WATTS, INDIV. AND D/B/A JOHNNIE'S FOUNDATIONS ET AL., DEFENDANTS-RESPONDENTS.



Appeal from the Circuit Court of La Salle County; the Hon. Leonard Hoffman, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal by the plaintiff Huber from an order of the circuit court of La Salle County which granted the defendants a new trial from a verdict of a jury.

The plaintiff, a cement truck driver, was injured on October 2, 1978, while delivering a load of concrete to a subdivision near Aurora for the defendant, Johnnie R. Watts individually and d/b/a Johnnie's Foundations. The injury occurred when the plaintiff was attempting to pour the ready-mixed cement from a chute attached to his truck. When he arrived at the job site the plaintiff backed his truck into position and while doing so noticed that the rear main chute which was lashed at a right angle to the back of his truck was elevating itself, which indicated a malfunction of the hydraulic system. After stopping the truck the plaintiff went to the back of the truck for the purpose of getting the main chute down or lower so it would pour concrete. An employee of the defendant Johnnie Watts, one Manley "Bud" Olson (also a defendant in this case), unlatched the main chute of the truck so that it was extending straight out from the rear of the vehicle. The plaintiff, being at the rear of the vehicle, locked the main chute into the straight out position and attempted to operate the electric-hydraulic switch on the left rear of the truck, which should have lowered the chute, but in this instance the switch failed to bring about the desired result. The evidence in this case established that when such a situation occurred it was standard and accepted procedure for the driver to hold the end of the main chute with his right hand, thereby placing weight on the chute, while again operating the electric-hydraulic switch with his left hand. All of this activity consumed one or two minutes of time. With the plaintiff's hand on the main chute for the purpose of imposing weight upon the same, the defendant Olson actuated a secondary or "flop-over" chute by pulling it so that it came down upon the plaintiff's hand, which was severely injured.

The evidence established that the defendant had a clear view of the plaintiff during the operations concerning the problems with the main chute. During the trial the truck involved in the accident was brought to the courthouse and the jury was given a demonstration of the maneuvering of the chute which enabled them to see just what view the defendant Olson would have had of the plaintiff. Also during the trial it was established that there was a "sticker" on the driver's side of the chute stating "Warning. Keep out from under chutes at all times. Keep fingers clear of pinch points." The plaintiff's hand was injured in a pinch point area.

The trial of this case was conducted pursuant to our relatively new comparative negligence doctrine. The jury returned a verdict setting damages at $325,000 and apportioned fault at 10% to the plaintiff and 90% to the defendants. The trial court granted a motion for a new trial on the grounds that the allocation of fault was disproportionate and it (the allocation of fault) was manifestly contrary to the evidence. In the trial court's written correspondence granting a new trial the court took no exception as to the amount of the verdict. If necessary, additional evidence adduced during the trial of this case will be set forth if the same becomes pertinent to the determination of this appeal.

The paramount question presented to this court is whether the trial court was correct in granting a new trial to the defendants.

• 1 In addressing this question, attention is first directed to assignments of error which the defendants contend occurred during the trial of this case and which would compel the granting of a new trial. Plaintiff argues that since the trial court granted a new trial solely on the grounds of a disproportionate allocation of fault by the jury and that since the defendants failed to ask for a rule by the trial court on other matters, i.e., amount of verdict, closing argument statements, there has been a waiver by the defendants of such alleged errors. We disagree with this argument of the plaintiff. The matters assigned as errors by the defendants were included in defendants' post-trial motion for a new trial and were argued at the hearing on such motion. Though an appellant who brings a case to an appellate court for review must indicate by his assignment of errors the errors of which he complains, and his argument must be confined to the errors so assigned, an appellee is subject to no such requirement. The appellee can sustain the decree appealed from by any argument and on any basis appearing in the record which shows that the trial court's decree is right. See Becker v. Billings (1922), 304 Ill. 190, 136 N.E. 581, and Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App.3d 956, 331 N.E.2d 365.

The defendants contend that certain remarks of counsel for the plaintiff during final argument to the jury misstated the law and were so prejudicial as to deny the defendant a fair trial. The complained-of remarks by counsel for the plaintiff were the result of his repeated invitations to the jury to equate damages with the sum of money that an injured party would offer to not to have sustained the injury in question. During oral argument before this court counsel for the plaintiff attempted to minimize the effect of such remarks by claiming that they consumed but a few minutes of time in a lengthy trial and that the trial court directed the jury to disregard the remarks and properly instructed the jury as to the law which should be followed in computing damages. In the light of such argument the determination of this issue will be best served by setting forth in full the complained-of remarks and the colloquy which ensued between court and counsel for all parties:

"MR. OZMAN: What would a reasonable person give not to have an injury with nature, extent and duration?

MR. HUPP: Now, Your Honor, I'm objecting to that statement.

MR. OZMAN: I think it's totally proper what a reasonable man would offer.

THE COURT: Yes, Proceed.

MR. OZMAN: What would the reasonable man give to be free, not have that type of problem? A hundred thousand dollars from the day of this occurrence for the next forty-six years?

MR. OZMAN: What would someone give to face that kind of situation, have these kinds of things taken away? Would a reasonable man say, give me $200,000.00 and ...


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