APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JEROME GAROON, JUDGE PRESIDING.
The opinion of the court was delivered by: Murray
PRESIDING JUSTICE MURRAY delivered the opinion of the court:
Plaintiff brought this action to recover bodily injury damages sustained as a result of the alleged negligence of the defendant in operating a motor vehicle. Following a jury trial, at which the defendant did not appear, the jury awarded judgment in favor of theplaintiff and against the defendant in the amount of $25,046.79, plus costs.
The sole issue presented for review is whether the trial court erred in submitting Pattern Jury Instruction 5.01. Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. Supp. 1993) (hereinafter IPI Civil 3d No. 5.01 (Supp. 1993)).
On July 3, 1990, the plaintiff, Marina B. Tekansky, filed a complaint for bodily injuries allegedly resulting from an automobile accident. The defendant, William Rush Pearson (Pearson) filed an appearance and jury demand on July 24, 1990.
Prior to trial, plaintiff filed a demand for production which, inter alia, sought the production of defendant for examination pursuant to section 2-1102 of the Illinois Code of Civil Procedure immediately after the completion of opening statements.
The matter was first set for trial on January 23, 1991. On January 23, 1991, an agreed order was entered continuing the trial to April 22, 1991. On April 22, 1991, an agreed order was entered continuing the trial to June 13, 1991. On June 13, 1991, an agreed order was entered continuing the trial to September 18, 1991.
On August 27, 1991, the defendant filed a motion to continue the trial date to a date after December 1, 1991. In his affidavit in support of the motion, Pearson stated he was a professional performance artist and he would be performing in Maryland and Texas from August 20, 1991, through December 1, 1991. The trial court granted defendant's motion and continued the trial date to February 26, 1992.
On February 26, 1992, an order was entered continuing the trial until May 27, 1992. On May 27, 1992, an order was entered continuing the trial until July 22, 1992.
On July 21, 1992, plaintiff presented an emergency motion to continue the trial date to a date after August 3, 1992. The plaintiff stated that she was going to be out of town due to her grandmother's illness. The trial court granted the motion and continued the trial to December 2, 1992. On December 2, 1992, an order was entered continuing the trial date to February 3, 1993.
On February 1, 1993, Pearson filed an emergency motion for continuance. Attached to the motion was Pearson's affidavit which stated: (1) Pearson is a professional actor who was currently performing in a Los Angeles, California, play; (2) the play was scheduled to run through February 25, 1993; and (3) as a result of this acting job, Pearson would be unable to return to Illinois for the February 3, 1993, trial. Said motion was denied.
On February 3, 1993, the cause proceeded to a jury trial. Following jury deliberations, the jury awarded plaintiff a judgment in the amount of $25,046.79, plus costs.
The defendant brought a post-trial motion pursuant to section 2-1202, raising the issues of the court's rulings with regard to the disputed jury instruction and closing argument statement. In the post-trial motion, defendant stated that defense counsel objected to the submission of IPI Civil 3d No. 5.01 (Supp. 1993) on the basis that it was not appropriate when directed against a party and that said objection was overruled by the court on the grounds that the instruction applies equally to parties as well as witnesses. Defendant further stated that during closing argument, plaintiff's counsel commented, "you can see how much defendant cares about this proceeding by the fact that he did not bother to show up." Defendant further stated that defense counsel's objection to the comment was overruled and that the comment helped foster the presumption that anything defendant ...