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Mccann v. Lisle-woodridge Fire Prot. Dist.





Appeal from the Circuit Court of Du Page County; the Hon. Carl F.J. Henninger, Judge, presiding.


Plaintiff, Dolores L. McCann, was involved in an automobile collision and brought suit for personal injuries against two other drivers, defendant David A. Rainford and defendant James J. Filliung and also against defendant Lisle-Woodridge Fire District (District) a local public entity, on the grounds that Filliung at the time and place in question was acting as agent and servant and in the course of his employment for the District. Negligence was charged against each defendant. The jury returned a verdict in favor of Rainford and in favor of plaintiff against defendants Filliung and Lisle-Woodridge Fire Protection District in the amount of $169,097. Only the District has brought this appeal.

Briefly stated, the collision occurred at a "T" intersection of Maple Avenue and Elm Street in Lisle, Illinois. Defendant Filliung, a volunteer fireman for defendant Lisle-Woodridge Fire Protection District, was responding to a call for his services and pulled around the left side of plaintiff's vehicle, which was stopped at a stop sign on Elm Street facing north at its intersection with Maple Avenue, and into the path of the Rainford vehicle, which was proceeding eastbound on Maple Avenue. Rainford applied his brakes, they locked, and his vehicle skidded until the left front fender struck the driver's door of plaintiff's vehicle.

• 1 On appeal, defendant first contends that the trial court should have awarded a new trial in this cause because plaintiff failed to comply with discovery procedures by failing to disclose the existence of certain photographs of plaintiff's vehicle and that such noncompliance was substantial and in bad faith. (E.g., Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App.3d 435, 443.) We do not disagree with the principles and supporting authorities regarding discovery and the purpose of full and complete discovery suggested by defendant, but, from our examination of the record, we conclude that there was no intentional or wilful conduct on the part of the plaintiff to hide or a failure to disclose the photographs in question.

On the contrary, a review of plaintiff's response to defendant's interrogatories concerning the photographs of the scene, person or vehicles involved in possession of plaintiff reveals that it is, as the result of typographical errors, unintelligible and meaningless. Defendant could have and should have sought clarification of this response well in advance of trial. Further, the record discloses that one of the attorneys representing the District did voir dire the plaintiff concerning the photographs in question and was given an opportunity to examine her concerning them and that, on motion of said attorney, the photographs were admitted into evidence. Thus, the photographs were available to the District's counsel in his closing argument, referred to several times in that argument, and were available to the jury for examination. In sum, plaintiff's typographical errors in her response to interrogatories did not constitute a violation of discovery procedures, and the trial court properly denied a new trial on the basis of this alleged discovery violation.

• 2 Defendant next maintains that a review of the record shows an oral agreement existed between plaintiff and defendant Rainford which undermined the integrity of the adversary nature of the judicial process. However, both counsel for plaintiff and for defendant Rainford, who were officers of the court, assured the court in no uncertain terms that there were no agreements. Considering the total circumstances shown by the evidence in this case, the conduct of counsel for plaintiff and counsel for defendant Rainford does not lead to the single inference that an agreement existed between plaintiff and defendant Rainford as contended by the defendant District. Therefore, a finding that no agreement existed would not be against the manifest weight of the evidence. The trial court did not abuse its discretion in failing to award defendant District a new trial on this ground.

• 3 Next the defendant contends that the trial court erred in excluding evidence regarding the effect of taxation on plaintiff's lost wages. Specifically, the court sustained an objection to defendant's attempts to elicit testimony as to plaintiff's net lost wages. Defendant contends that this evidence should have been admitted.

Defendant argues on appeal, as it did in its post-trial motion, that Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L.Ed.2d 689, 100 S.Ct. 755, a wrongful death action brought under the Federal Employers Liability Act (FELA) (45 U.S.C. § 51 et seq. (1976)) is applicable and supports the conclusion that evidence of the effect of taxation is admissible. Specifically, defendant points to language of the Supreme Court that the FELA is compensation oriented and that a "wage earner's income tax is a relevant factor in calculating the monetary loss suffered by his dependents when he dies." (444 U.S. 490, 494, 62 L.Ed.2d 689, 694, 100 S.Ct. 755, 757.) The narrow issue before us is whether Liepelt should be applied to a non-FELA case, specifically a State action for personal injuries.

In Illinois cases both before and after Liepelt, Illinois courts> have prohibited jury instructions as to the nontaxable nature of damages awards. In two cases cited by the parties, the first and third districts of this court rejected the proposed application of Liepelt that would allow such jury instructions, basing the rejection on a determination that the Liepelt holding does not apply to claims arising under State law. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App.3d 257, 262; Newlin v. Foresman (1982), 103 Ill. App.3d 1038, 1046.) Specifically, the court found in these cases that Raines v. New York Central R.R. Co. (1972), 51 Ill.2d 428, 430, cert. denied (1972), 409 U.S. 983, 34 L.Ed.2d 247, 93 S.Ct. 322, is applicable to a State action and that the proffered jury instruction was properly refused. Accord, Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App.3d 994, 1009.

Defendant attempts to distinguish between jury instructions on the nontaxability of damages awards, which was the subject of the post-Liepelt cases of Christou and Newlin, and evidence to be introduced that pecuniary loss is a net amount to be determined after deduction for taxes, the issue at bar. Defendant would apply Liepelt to the latter. We agree with plaintiff that defendant is seeking to obtain through evidence at trial what it could not do by way of instructions and that allowing such evidence at trial would be inconsistent with prohibiting the instructions.

The United States Supreme Court recognized in Liepelt that both of these questions in an FELA action are governed by Federal rather than State law. (444 U.S. 490, 492-93, 62 L.Ed.2d 689, 693, 100 S.Ct. 755, 757.) However, this court, in the post-Liepelt cases discussed above, has rejected Liepelt and found that Raines is applicable in cases arising under State law. In Raines our supreme court stated as follows:

"In Hall v. Chicago and Northwestern Ry. Co., 5 Ill.2d 135, at 151-152, this court observed: `It is a general principle of law that in the trial of a lawsuit the status of the parties is immaterial. Thus, what the plaintiff does with an award, or how the defendant acquires the money with which to pay the award, is of no concern to the court or jury. Similarly, whether the plaintiff has to pay a tax on the award is a matter that concerns only the plaintiff and the government. The tortfeasor has no interest in such question. And if the jury were to mitigate the damages of the plaintiff by reason of the income tax exemption accorded him, then the very Congressional intent of the income tax law to give an injured party a tax benefit would be nullified.'" (51 Ill.2d 428, 430.)

This view is in accord with that of the dissent in Liepelt, wherein Justice Blackmun and Justice Marshall said:

"[B]y mandating adjustment of the award by way of reduction for federal income taxes that would have been paid by the decedent on his earnings, the Court appropriates for the tortfeasor a benefit ...

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