Appeal from the Circuit Court of Winnebago County; the Hon.
Harris H. Agnew, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Margaret Countryman, executor of Richard Countryman's estate, brought a wrongful death action against Winnebago County in connection with her husband's death in the county's jail due the county's alleged negligence. The jury found for Margaret Countryman; found total damages amounted to $400,000; and reduced damages by 50% based upon Richard Countryman's contributory negligence. The county has appealed, and Margaret Countryman has cross-appealed from the judgment.
The county raises issues concerning whether, in a wrongful death action where loss of consortium damages were recoverable, evidence that decedent's wife saw him in bed with another woman was improperly excluded; the jury should have been instructed that any award of damages would be exempt from income taxes; mistrial should have been granted due to out-of-court remarks made by the trial judge in his capacity as chief judge which were reported in the local newspaper; the judgment finding the county guilty of negligence was against the manifest weight of the evidence; certain Federal court pleadings were admissible; and opinion testimony as to the statistical likelihood of accidental death of a person who abuses alcohol was admissible. Margaret Countryman raises a single issue concerning whether the jury was improperly instructed that an intoxicated person is held to the same standard of care as a sober person.
At about 10:30 p.m. the evening of May 13, 1981, Richard Countryman was involved in a traffic accident. He left the scene and was shortly thereafter arrested. The damage to his pickup truck was such that, when arrested, Mr. Countryman had to get out on the passenger side. He was charged with driving under the influence and leaving the scene of a property damage accident; however, because of possible injuries to the other driver, the latter charge was amended prior to his being taken to the jail to leaving the scene of a personal injury accident.
Mr. Countryman was taken to the Winnebago County Public Safety Building. At the entrance, Mr. Countryman fell and struck his head against a plasterboard wall, making an indentation or hole in the wall and briefly rendering him unconscious. He was helped to his feet and, while being led to a room where breathalyzer testing was to occur, he fell to his knees and urinated on the floor. He was again assisted to his feet and two breath tests were performed with readings of .15 and .19.
In the elevator which was taking him to the jail area of the building, Mr. Countryman again fell to his knees. He was helped to his feet and led to the booking desk after the elevator reached the third floor.
Once there, the traffic citations charging the defendant with the two aforementioned offenses were given to Deputy Lloyd Clark who, with Deputy Virginia Ritter, booked Mr. Countryman. Clark started to fill out a medical history questionnaire, but did not complete it, during booking.
Deputy William Michau took Mr. Countryman to be fingerprinted and photographed and, during the 25 to 30 minutes they were together, heard Mr. Countryman complain of pain in his back on three separate occasions. On two of those occasions he also saw Mr. Countryman's midsection jerk. When returned to the booking area, Mr. Countryman had to be held by Clark to prevent his falling.
Mr. Countryman had sufficient money, the inventory search during his booking showed, to make bond. There was testimony that he was asked to telephone home and encouraged to make bond, but that he refused to do so. After his refusal, Richard Countryman was taken to a temporary holding cell. He was seen twice by the jail's night shift supervisor in the early morning hours of May 14, 1981: once at about 4:30 a.m. and again about 5:15 a.m. Breakfast was served in the temporary holding area at about 5:45 a.m., and the jailer serving it testified that Mr. Countryman's tray was empty when it was subsequently picked up.
Mr. Countryman was found slumped over the toilet in his cell with blood coming from his mouth at about 10 a.m. He was pronounced dead at about 10:20 a.m., May 14, 1981. An autopsy performed that afternoon indicated that he had bilaterally fractured ribs and a torn mesentery as a result of the traffic accident. The latter condition had resulted in internal bleeding which caused Mr. Countryman's death. There was testimony from a surgical expert at trial that an examination would have revealed the condition; that a simple operation could have been performed within 20 minutes of diagnosis; and that if the surgery had been so performed Richard Countryman would have lived.
• 1-3 The first issue raised by the county concerns the admissibility of evidence of an extramarital affair by Richard Countryman of which his wife had been aware. During a deposition prior to trial, the county had elicited from Margaret Countryman that sometime during 1980, she had found Mr. Countryman in bed with another woman in his trailer. She had also seen her husband with the woman on a previous occasion when they were starting a car with jumper cables. In addition, the county argued that, from the information made available to it by plaintiff, it appeared that Mr. Countryman had been with the same woman the night he was killed, although there was no evidence of a sexual encounter on that evening. The county sought to introduce this at the trial on the basis that it was relevant to damages because it bore on the value of the consortium Margaret Countryman had lost. A pretrial order in limine precluded the county from introducing this evidence.
Margaret Countryman, without conceding the relevance of the evidence, primarily contends that the probative value of the evidence was outweighed by the prejudicial effect it would have had. Therefore, she argues, the evidence was properly excluded. Thus, the following two questions, are presented: (1) was the evidence of Richard Countryman's affair relevant and (2) if so, was the probative value of evidence of that affair outweighed by the unfair prejudicial effect it would have had.
Damages for loss of consortium may be recovered in an Illinois wrongful death action. (Elliott v. Willis (1982), 92 Ill.2d 530, 442 N.E.2d 163.) Consortium consists of several elements, encompassing not only material services but such intangibles as society, guidance, companionship, and sexual relations. (Elliott v. Willis (1982), 92 Ill.2d 530, 535, 442 N.E.2d 163, 165; Dini v. Naiditch (1960), 20 Ill.2d 406, 427, 170 N.E.2d 881, 891; Coulter v. Renshaw (1981), 94 Ill. App.3d 93, 96, 418 N.E.2d 489, 491-92.) Despite the nebulousness of the concept of consortium, a jury is capable of determining its monetary worth. Elliott v. Willis (1982), 92 Ill.2d 530, 539-40, 442 N.E.2d 163, 168.
Since the jury is required to determine the worth of the elements making up the consortium, evidence relevant to that worth is admissible. The narrow question then is whether evidence that Margaret Countryman had found Richard Countryman in bed with another woman had any tendency to establish that the consortium was worth less than if that event had not occurred. (See Marut v. Costello (1966), 34 Ill.2d 125, 128, 214 N.E.2d 768, 769 ("[r]elevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable. To be probable, it ...