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09/24/97 TYRONE FETTSON v. KATIE L. JAMES AND

September 24, 1997

TYRONE FETTSON, PLAINTIFF-APPELLEE,
v.
KATIE L. JAMES AND LIBERTY SCHOOL BUS COMPANY, DEFENDANTS-APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS. No. 94-L-06420. THE HONORABLE EDWARD G. FINNEGAN, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Defendants, Katie L. James and Liberty School Bus Company, were found liable for negligence in a suit involving an automobile accident, whereupon a jury awarded damages of $25,000 to plaintiff. On appeal, defendants seek a new trial, arguing that: (1) the trial court erred by refusing to allow evidence that would have shown that plaintiff's claim for loss of income was exaggerated and implausible, including evidence or questioning of plaintiff's (a) income from tax returns for years prior and subsequent to the year of the accident, (b) prior wage loss claim, (c) lack of a bank account, and (d) cash payments; (2) the trial court's sua sponte jury instruction regarding the equal availability of witnesses was improper and prejudicial; (3) the trial court erred in disallowing evidence of plaintiff's expert witness' initial failure to produce medical records; (4) the trial court erred by prohibiting evidence of other lawsuits; and (5) during closing argument, plaintiff's counsel's improper objections prejudiced defendants by wrongly implying to the jury that defendants had prevented them from hearing important evidence.

BACKGROUND

On November 11, 1993, in Chicago, Illinois, plaintiff, Tyrone Davis Fettson, a professional singer and performer, was driving westbound on Jackson Boulevard. He stopped at a red traffic signal at the intersection of Jackson Boulevard and Homan Avenue and then proceeded when the traffic signal turned green. At the time, defendant, Katie L. James, a school bus driver employed by defendant, Liberty School Bus Company, was travelling southbound on Homan Avenue. When James entered the intersection of Jackson and Homan, her bus struck the right rear section of plaintiff's automobile. After the collision, both parties exited their vehicles, and plaintiff complained to James about pain in his neck, the right side of his back, and his right hip. Both parties then proceeded to the nearest police station to fill out reports.

The next day, plaintiff visited his physician, who examined him and found that plaintiff sustained swelling of the right hip, indicating bruising of the tissue and broken blood vessels. Plaintiff's physician then advised him not to work until he had sufficiently recovered. Plaintiff underwent physical therapy with his physician and returned to work nearly four weeks after the date of the accident. Plaintiff incurred $860 in medical expenses in connection with the treatment of his injuries.

At trial, plaintiff testified that, due to his injuries and pain, he was unable to satisfy two previously executed performance contracts during his recovery period. The first contract was to pay plaintiff $7,500 per night for five consecutive nights. Plaintiff had already fulfilled the first performance the night before the accident, but he was unable to complete the remaining four engagements; hence, his damages claimed therefrom were $30,000. Plaintiff's second contract was for $52,500 and obligated him to perform the week following his accident. The jury returned a verdict in favor of the plaintiff for $25,000.

We affirm.

I

Defendants first contend that the trial court erred by refusing to allow evidence which would have shown that plaintiff's claim for loss of income was exaggerated and implausible. Defendants base their argument on four separate rulings made by the trial court with regard to evidence or questioning of plaintiff's income from tax returns, prior wage loss claim, lack of a bank account, and cash payments. Defendants argue that, individually or taken as a whole, the trial court's rulings as to these matters constituted reversible error.

A

We first address defendants' claim that error occurred when the trial court allowed questioning of plaintiff's income from his income tax returns only as to the year of the accident and not for years before or after the incident. During cross-examination of the plaintiff, defendants showed plaintiff copies of his own tax returns for years 1990 through 1993. Plaintiff identified the tax returns as his own, but plaintiff's counsel immediately objected on grounds of relevance. Defense counsel argued that information of plaintiff's income from tax returns was relevant in light of his substantial claim of lost wages, but the trial court overruled plaintiff's objection only as to the 1993 tax returns. Defendants argue that the trial court's restriction to plaintiff's 1993 tax returns was error.

Generally, where a plaintiff seeks to recover lost wages, it is proper for the court to allow the defendant to question plaintiff about his income tax returns. Cerveny v. American Family Insurance Co., 255 Ill. App. 3d 399, 411-13, 626 N.E.2d 1214, 193 Ill. Dec. 663 (1993). Cross-examination of plaintiff as to income tax returns is also proper where plaintiff's testimony reveals a lack of certainty over the amount of lost income. Wigington v. Faulkner, 51 Ill. App. 2d 220, 201 N.E.2d 252 (1964) (abstract of opinion). This court, however, has found it to be error for a trial court to allow a defendant to probe extensively into a plaintiff's income tax returns. Pozzie v. Mike Smith, Inc., 33 Ill. App. 3d 343, 347, 337 N.E.2d 450 (1975).

In Cerveny v. American Family Insurance Co., 255 Ill. App. 3d 399, 626 N.E.2d 1214, 193 Ill. Dec. 663, the plaintiff failed to offer any proof of actual past earnings and, instead, implied to the jury through direct testimony that her lost future earnings would be as great as her alleged past earnings. Cerveny, 255 Ill. App. 3d at 411. Equally important, this court noted that defendant's line of questioning with regard to plaintiff's tax returns was extremely limited, where defendant merely asked if plaintiff had filed tax returns. Cerveny, 255 Ill. App. 3d at 412.

Conversely, in Pozzie, we found defendant's questioning of plaintiff's tax returns to be excessive, where defendant made detailed inquiries into plaintiffs claimed deductions and income disclosures in an attempt to discredit the plaintiff. Pozzie, 33 Ill. App. 3d at 347. There, the court censured the defendant for attempting to cross-examine the plaintiff on irrelevant matters. Pozzie, 33 Ill. App. 3d at 347.

We believe the case at bar is similar to Cerveny in that plaintiff here relied largely upon his own testimony to establish his claim for lost income, and defendant only briefly touched upon the subject of income tax returns. Cerveny, however, stands for the proposition that such limited questioning is not improper or reversible error. Defendants in this case effectively argue for an expansion of this rule, whereby more extensive questioning of plaintiff's income tax returns would be proper. Although we do not believe that defendants' questioning of plaintiff's tax returns rose to the level of that in Pozzie, we cannot justify an expansion of the general rule in this case for several reasons.

First, unlike Wigington and Cerveny, where plaintiffs' complete failure to prove lost income justified inquiry into their income tax returns, plaintiff here established a precise amount of lost income based on his testimony, medical bills, and copies of his performance contracts. In addition, the trial court did not totally preclude defendants from questioning plaintiff with regard to his tax returns, as it allowed unrestricted questioning with respect to plaintiff's 1993 tax returns. Moreover, defense counsel's line of questioning on this subject was very brief and merely confirmed plaintiff's net and gross incomes for 1993. Furthermore, defendants made no reference to plaintiff's income or tax returns during summation. Considering that plaintiff was not a salaried employee, but an independent contractor, in our view, precluding questioning as to income for prior and subsequent years was within the sound discretion of the trial court. Such testimony would not have been probative of plaintiff's income or lost wages in 1993. It is well established that admission of evidence is a matter within the discretion of the trial court, and evidentiary rulings will not be reversed absent an abuse of discretion. Jackson v. Pellerano, 210 Ill. App. 3d 464, 471, 569 N.E.2d 167, 155 Ill. Dec. 167 (1991).

B

Defendants also contend that the trial court erred by refusing to allow questioning as to the amount of plaintiff's wage loss claim in a previous, unrelated case. At trial, defendants attempted to expose plaintiff's wage loss claim of $200,000 in a case arising from injuries he suffered three months before the November 11, 1993, accident. At issue was defendants' argument that plaintiff had claimed lost wages in a prior lawsuit for a period of time that encompassed the time span at issue in the instant case. The trial court sustained plaintiff's objection to this line of inquiry, calling into question its relevance, particularly in light of the court's earlier granting of plaintiff's motion in limine barring evidence of prior lawsuits. However, while the trial court prohibited defense counsel from mentioning the amount of plaintiff's prior wage loss claim, it did allow defendants to impeach plaintiff with regard to the allegedly overlapping time periods in which plaintiff claimed lost income.

Generally, any evidence that has a natural tendency to establish the fact in controversy should be admitted. Mueller v. Yellow Cab Co., 110 Ill. App. 3d 504, 508, 442 N.E.2d 595, 66 Ill. Dec. 169 (1982), citing People v. Newsome, 291 Ill. 11, 19, 125 N.E. 735 (1919). Defendants rely primarily upon this general rule in Mueller, notwithstanding the limiting precept upon which it is based, namely, that of relevancy. Indeed, the "basic principle which animates our law of evidence is that what is relevant generally is admissible." Mueller, 110 Ill. App. 3d at 508, citing People ex rel. Noren v. Dempsey, 10 Ill. 2d 288, 293, 139 N.E.2d 780 (1957). Furthermore, relevancy is shown where the evidence offered tends to prove ...


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