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12/28/87 Wallace G. Ferry, v. Checker Taxi Company

December 28, 1987

WALLACE G. FERRY, PLAINTIFF-APPELLEE

v.

CHECKER TAXI COMPANY, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

520 N.E.2d 733, 165 Ill. App. 3d 744, 117 Ill. Dec. 382 1987.IL.1923

Appeal from the Circuit Court of Cook County; the Hon. David Cerda, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Initially, plaintiff Wallace G. Ferry (Ferry) filed a complaint against the defendant, Checker Taxi Company, Inc. (Checker), seeking damages for personal injuries he received while he was a passenger in Checker's cab. Plaintiff later filed an amended complaint against Checker to specifically allege negligent operation of the cab in count I, negligent failure to obtain information concerning the identity of the driver of the vehicle which struck the cab in count II, and wilful and wanton failure to obtain such information in count III. Defendant Checker moved to dismiss counts II and III for failure to state a cause of action. In ruling on Checker's motion, the trial court dismissed count III for failure to state a cause of action, but found that count II did state a cause of action. The case went to trial in the circuit court of Cook County on counts I and II. At the close of the evidence, the trial court entered a directed verdict for the defendant on count II. Thereafter, the jury returned a general verdict for plaintiff in the amount of $80,000 on count I, and the trial Judge entered judgment on the verdict. Checker now appeals that judgment as well as the trial court's denial of its previous motion to dismiss count II of the complaint for failure to state a cause of action.

On March 14, 1977, the plaintiff, Wallace Ferry, a Florida resident, arrived at Chicago O'Hare International Airport to attend a convention. Upon his arrival at O'Hare, Ferry met another representative from his company, Mr. Piqueras, and together they took a Checker taxicab from O'Hare to Ferry's hotel, located in downtown Chicago. While in route to the hotel on the Kennedy Expressway, traveling southeast, the cab driver pulled quickly into the left lane of traffic and then hit his brakes suddenly. The vehicle behind the cab hit the cab from the rear. It was this impact that allegedly caused Ferry's injuries to his neck and aggravated a disorder in his back. The cab driver stopped, got out of the cab, went to the back of the cab, returned approximately one minute later, and drove off. Ferry saw that the other car was damaged but could not discern the make, model, or license plate of the other car. As the cab drove off, Ferry, since he was hurt, asked the cab driver for information as to the other car, but the cab driver did not respond and continued driving. When the cab got to Ferry's hotel, the only information Ferry could obtain from the cab driver was the Checker cab number. Ferry contacted both the police and Checker to report the incident. The next day, a Checker representative came to Ferry's hotel and took a short statement from both Ferry and Piqueras.

Thereafter, on May 5, 1978, plaintiff filed his two-count complaint, which, as stated before, was later amended to include three counts. As noted, count III was dismissed by the trial court for failure to state a cause of action, but counts I and II proceeded to trial.

The case was tried in the circuit court of Cook County, before a jury on May 8, 1986. Prior to trial, the court granted a motion in limine by the plaintiff which precluded the introduction of that portion of Ferry's statement taken by the Checker representative the day after the accident, in which Ferry blamed the other driver for the accident. At the end of the trial, during closing arguments, plaintiff's counsel, in his argument to the jury, specifically referred to Checker's lack of evidence, Checker's burden of proof, Checker's insurance claims adjuster, a per diem verdict approach, proximate cause or lack thereof, and the criminal standard of proof.

Both sides tendered instructions to the trial court, which included the contested instructions in this appeal, i.e., the instruction by Ferry which dealt with the cab driver's failure to keep a proper lookout, and the instruction by Checker which authorized the jury to consider inconsistencies between Ferry's conduct after the accident and his claims in this case. As noted previously, Ferry's instruction concerning the failure to keep a proper lookout was tendered to the jury, but Checker's instruction concerning Ferry's inconsistent conduct was not tendered to the jury.

Prior to sending the case to the jury, the trial court, as stated before, entered a directed verdict for Checker on count II, and the jury returned a general verdict for $80,000 in favor of the plaintiff, Ferry, on count I. Defense counsel requested and was permitted to poll the jury after the verdict was read and when one juror, Mrs. Zibrat, expressed some doubt as to the verdict, the trial Judge took over and proceeded to conduct the poll of the jury. The trial Judge then asked every juror, "Was it your verdict then in the jury room and is it your verdict now?" All jurors responded in the affirmative, including Mrs. Zibrat, who verbally expressed no doubts when queried by the Judge. No further questioning was allowed and the Judge entered judgment on the verdict.

Defendant Checker raises six issues on appeal: (1) whether the trial court erred by prohibiting Checker from introducing into evidence Ferry's statement given the night of the accident, in which he ascribed responsibility for the accident to the driver of the other car; (2) whether the trial court erred when it refused to include within the instructions, as requested by Checker, language that would have allowed the jury to consider Ferry's conduct after the accident which Checker alleged was inconsistent with his claims; (3) whether Checker was deprived of a fair trial and/or prejudiced by Ferry's counsel's statements in closing argument in which comment was made concerning Checker's lack of evidence, Checker's burden of proof, Checker's insurance coverage, a per diem verdict calculation, proximate cause, and the criminal standard of proof; (4) whether the trial Judge properly polled the jury as requested by Checker's counsel; (5) whether the trial court erred by giving Ferry's requested instruction concerning Checker's driver's failure to keep a proper lookout; and (6) whether the trial court erred in denying Checker's motion to dismiss count II of the first amended complaint.

We find no merit in Checker's first contention that the trial court should have been allowed to introduce into evidence Ferry's statement made to the representative after the accident, in which Ferry blamed the other driver for the accident. In disallowing the statement, the trial court properly relied on Schall v. Forrest (1977), 51 Ill. App. 3d 613, 366 N.E.2d 1111, and excluded the statement as an improper legal Conclusion. In Schall, the court found that the statement, "I think Tipsword [ sic ] is mostly at fault," was a legal Conclusion, not an admission, and therefore could not be admitted into evidence. The court stated that a party's reference to another person as being the one at fault is not an admission; rather, it is an improper expression on the ultimate issue of the case and an invasion on the province of the jury. Schall, 51 Ill. App. 3d 613, 366 N.E.2d 1111.

Checker argues that the trial court should have relied on an abstract opinion, Ingram v. Tucker (1953), 350 Ill. App. 100, 111 N.E.2d 847, and a 1938 Oregon case, Swain v. Oregon Motor Stages (1938), 160 Or. 1, 82 P.2d 1084. We disagree. Schall is clearly the controlling case. Ferry's statement placing the blame on the other driver was a legal Conclusion, ...


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