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12/02/88 Phillip J. Gillespie, v. Chrysler Motors

December 2, 1988

PHILLIP J. GILLESPIE, PLAINTIFF-APPELLEE

v.

CHRYSLER MOTORS CORPORATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

532 N.E.2d 875, 178 Ill. App. 3d 5, 127 Ill. Dec. 46 1988.IL.1744

Appeal from the Circuit Court of St. Clair County; the Hon. Richard A. Hudlin IV, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. HARRISON, P.J., concurs. JUSTICE WELCH, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

While servicing a United Parcel Service van, Phillip J. Gillespie, a mechanic for UPS, injured his back when the hood of the van dropped on his back. Gillespie sued Chrysler Motors Corporation alleging that Chrysler supplied UPS with a defective hood hinge which broke and caused the hood to fall on Gillespie, resulting in his back injuries. The parties tried the case for three weeks before a jury. At the close of all of the evidence, the court directed a verdict in Gillespie's favor, finding that the hinge was unreasonably dangerous. The case was submitted to the jury on the issue of proximate cause. The jury returned a verdict in Chrysler's favor. The trial court, however, granted Gillespie's post-trial motion for a new trial on the ground that Chrysler committed prejudicial error by improperly impeaching Gillespie with a prior statement he made to a nurse, and by repeating the prior statement during its opening statement and closing argument. Chrysler appeals the trial court's order for a new trial. We affirm.

A trial court's decision on a motion for a new trial will not be overturned unless the court abused its discretion. (Ramseyer v. Illinois Central R.R. Co. (1969), 110 Ill. App. 2d 95, 96, 249 N.E.2d 120, 120.) The sole issue on appeal is whether the trial court had a sufficient basis for ordering a new trial. Although both parties discuss other alleged errors committed during the trial, we are only concerned with the one error on which the trial court based its decision.

The trial court found that Chrysler improperly attempted to impeach Gillespie with a prior statement he made to a nurse. The nurse wrote the statement in Gillespie's medical records. The record reveals that Gillespie suffered a severe low back strain a few weeks prior to the accident. Gillespie was hospitalized and absent from work as a result of the strain. On March 7, 1981, just two days prior to the accident, Gillespie went to the office of Dr. John Jemsek, his treating physician, for a follow-up examination. On that day Jemsek's nurse, Karen O'Dell, wrote the following note in Gillespie's medical records: "When [Gillespie] gets up in truck he has to get on knees and pull himself up." During Gillespie's evidence deposition, Chrysler asked him:

"Q. Okay. And do you remember telling anybody on March 7th that when you get up in the truck that you have to get up on your knees and pull yourself up?

A. Not that I recall.

Q. Okay. You are not denying that you said it?

A. I don't remember having that condition at that time. I will put it like that."

The court found that Chrysler improperly tried to impeach Gillespie because Chrysler failed to call O'Dell to testify to authenticate the statement in her note.

The trial court not only held that Chrysler improperly attempted to impeach Gillespie because Chrysler never submitted proof of the impeaching statement, but further held that this error was prejudicial to Gillespie. The court pointed out that Gillespie was the only witness who testified that the accident occurred. Thus, his credibility was a crucial issue in the trial, and the attempted impeachment necessarily affected his credibility. The court also noted that Chrysler compounded the prejudicial effect by referring to the statement in its opening statement and closing argument. We agree with the trial court that Chrysler improperly attempted to impeach Gillespie with the nurse's note, and that that action, together with Chrysler's other references to the note during the trial, had a prejudicial effect on Gillespie.

Chrysler initially argues that Gillespie failed to object at trial to its references to the note and therefore he waived his right to challenge the issue on appeal. Chrysler also points out that "when offering counsel fails to supply the connection needed to make evidence admissible, the burden is on objecting counsel to renew his objection by requesting that all the evidence dependent upon the connecting proof be stricken, or the point is waived." (Kloster v. Markiewicz (1981), 94 Ill. App. 3d 392, 393, 418 N.E.2d 986, 987.) Chrysler additionally cites Bullard v. Barnes (1983), 112 Ill. App. 3d 384, 392, 445 N.E.2d 485, 492, aff'd (1984), 102 Ill. 2d 505, 468 N.E.2d 1228, for the proposition that a party cannot assign error to the admission of evidence if that same evidence is admitted without objection at some other time during the trial.

The record reveals that Gillespie did not object when Chrysler referred to the note in its opening statement. Gillespie did not object during the deposition of Dr. Gaylin Lack, Gillespie's other treating physician, to Chrysler's question regarding the note; the question and Lack's response were read to the jury. Gillespie also failed to object to the questions about the note during his own evidence deposition. Gillespie did object to similar questions asked of Jemsek during Jemsek's evidence deposition; the court sustained the objections and the questions and answers were not read to the jury. Gillespie, however, later withdrew one of the objections he made during Jemsek's deposition, so one question and answer concerning the note were read to the jury. Gillespie also objected to Chrysler's reference to the note during Chrysler's closing argument, and the court sustained the objection.

Although a party must object to an error during trial in order to preserve it for review, a court may, "where necessary to ensure a fair trial and protect the judicial process from deterioration, [consider] errors where no objection was made in the trial court." (Underwood v. Pennsylvania R.R. Co. (1966), 34 Ill. 2d 367, 371, 215 N.E.2d 236, 239.) Consequently, in order to ensure a fair trial, we find it necessary to review the alleged error. As we will discuss later, the references to the note severely prejudiced Gillespie's case. We acknowledge that Gillespie failed to object to every question Chrysler asked concerning the note. Gillespie, however, did not completely overlook the error. During the pretrial conference on Jemsek's deposition, Gillespie objected to Chrysler's questions regarding the note on hearsay grounds. Chrysler informed the court that it intended to call the nurse to testify to prove up the statement and asked the court to admit the testimony on the condition that Chrysler call the nurse to testify. The court refused Chrysler's request and sustained the objection on hearsay grounds. Chrysler never called the nurse to testify. Thus, although Gillespie failed to renew his objection each time Chrysler raised the issue of the note, Chrysler was not unaware that it had to submit the nurse's testimony in order to properly admit any evidence concerning the note.

Chrysler draws our attention to Sprague v. Commonwealth Edison Co. (1978), 59 Ill. App. 3d 342, 375 N.E.2d 493. In Sprague, the defendant asked a witness whether he remembered making a certain prior statement, and the witness replied that he did not remember. The defendant, however, never presented proof that the witness had in fact made the prior statement. The court held that plaintiff failed to preserve the issue for appellate review because plaintiff did not object at trial to defendant's alleged improper impeachment of the witness. (Sprague, 59 Ill. App. 3d at 350, 375 N.E.2d at 500.) The court, however, also held that defendant did not impeach the witness because the witness' prior statement and the witness' testimony were the same; thus, plaintiff was not prejudiced by the testimony. (Sprague, 59 Ill. App. 3d at 350-52, 375 N.E.2d at 500-01.) Gillespie's prior statement and testimony were not the same, and as we noted earlier, we believe Gillespie was prejudiced by the references to the note. Consequently, Sprague is distinguishable.

Chrysler's second argument is that it did not intend to impeach Gillespie by cross-examining him on the note. Chrysler asserts that Gillespie previously admitted that he had a prior injury, so Chrysler believed that Gillespie would likewise admit the facts contained in the note. Even if it had intended to impeach Gillespie, Chrysler contends that Gillespie's testimony had no significant impeaching effect. Chrysler, therefore, asserts that it had no duty to submit proof of the prior statement.

Contrary to Chrysler's assertions, we believe it was attempting to impeach Gillespie. The important medical evidence was the extent of Gillespie's back problems just prior to the accident, not merely whether Gillespie had a prior injury. Gillespie was the only eyewitness to the accident. Gillespie could substantiate his own testimony if he could show that two days before the accident he was virtually recovered from the prior injury and that after the accident he had back problems. While Gillespie admitted that he suffered a prior back injury, which further evidence revealed was initially quite severe, he had not previously testified that two days prior to the accident he was in so much pain that to get into his truck he had to get on his knees and pull himself up. Moreover, Chrysler did not simply ask Gillespie what the extent of his pain and injuries were on March 7, or whether he had trouble getting into his truck on March 7. Rather, Chrysler specifically asked Gillespie whether he told someone on March 7 that he had to get on his knees and pull himself up to get into his truck. This was an exact reference to Gillespie's alleged statement to the nurse. Thus, Chrysler clearly intended to impeach Gillespie.

The cases cited by Chrysler are distinguishable. In Domena v. Prince (1977), 52 Ill. App. 3d 462, 469, 367 N.E.2d 717, 722, the appellate court, in a Structural Work Act suit, held that plaintiff had not impeached the witness so plaintiff did not have to submit proof of the prior impeaching statement. The witness testified that a plank involved in the accident was 6 feet 11 inches in length. Plaintiff then read a previous statement the witness had given to an investigator wherein the witness had stated that he did not recall the length of the plank. The court found that the prior statement was not contrary to his testimony and therefore not impeaching, because the witness in the prior statement was referring to the dimensions of the plank before it was cut to 6 feet 11 inches. Domena, 52 Ill. App. 3d at 469, 367 N.E.2d at 722.

In People v. Mullinax (1979), 67 Ill. App. 3d 936, 939, 384 N.E.2d 1372, 1375, the appellate court held that the State did not attempt to impeach the witness. The State asked the witness whether the defendant "was going to take a shotgun and blow her away." The witness replied, "No, I think he said he was going to shoot her." (Mullinax, 67 Ill. App. 3d at 939, 384 N.E.2d at 1375.) The court noted that the State did not thereafter question the witness about a prior contrary statement, but merely accepted the witness' answer. The court also pointed out that the substance of both the question and the answer was virtually the same. (Mullinax, 67 Ill. App. 3d at 940, 384 N.E.2d at 1375.) In contrast, Chrysler explicitly asked Gillespie about a prior statement, and the substance of Gillespie's answer, that he did not recall making the statement, was not similar to the substance of Chrysler's question.

Chrysler contends that even if it had intended to impeach Gillespie, no impeachment occurred because Gillespie did not deny making the prior statement; Gillespie only acknowledged that he could not recall making the statement. We believe that ...


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