Northern Trust Bank v. Carl

558 N.E.2d 451, 200 Ill. App. 3d 773, 146 Ill. Dec. 488, 1990 Ill. App. LEXIS 978
CourtAppellate Court of Illinois
DecidedJune 29, 1990
Docket1-88-1498
StatusPublished
Cited by9 cases

This text of 558 N.E.2d 451 (Northern Trust Bank v. Carl) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northern Trust Bank v. Carl, 558 N.E.2d 451, 200 Ill. App. 3d 773, 146 Ill. Dec. 488, 1990 Ill. App. LEXIS 978 (Ill. Ct. App. 1990).

Opinion

JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows a jury verdict for defendants in an action for personal injuries arising out of an automobile accident. Plaintiff raises the following issues on appeal: whether defendants’ counsel’s comments in closing argument were inflammatory; whether defendants’ counsel violated his own motion in limine, prejudicing plaintiff; whether defendants’ counsel’s conduct during trial was so improper as to mandate a new trial; and whether the trial judge improperly permitted testimony relating to plaintiff’s alleged contributory negligence and prior medical history.

We affirm.

On November 5, 1979, plaintiff Seymour Sholder filed a one-count negligence action against Mobil Chemical Corporation (Mobil) and James Carl for injuries, including “permanent cardiac” injuries, Sholder received in a collision involving his automobile and a Mobil truck driven by Carl in August 1979. The collision occurred near Skokie Valley Hospital, where plaintiff was a staff physician. At the time of the occurrence, Carl was making a delivery to the hospital.

In July 1980, Sholder suffered a heart attack and eventually underwent heart bypass surgery. Sholder previously had suffered a heart attack in 1965.

On August 27, 1986, Sholder died.

The matter eventually proceeded to trial in January 1988. Plaintiff’s theory was that Sholder’s July 1980 heart attack was due to the collision which occurred in August 1979. At the conclusion of trial, the jury returned a verdict in defendants’ favor.

This appeal followed.

We summarize other pertinent facts below only to the extent it is necessary to do so in the disposition of the issues presented.

Opinion

Plaintiff first argues that defendants’ counsel made numerous improper comments in his closing argument. Specifically, plaintiff identifies nine instances of improper comment in defendants’ counsel’s closing argument.

Plaintiff contends that counsel improperly referred to Carl as the “poor truck driver,” compounding the impropriety by so referring to Carl three other times.

The record indicates that the trial judge sustained plaintiff’s counsel’s objection to the first use of the phrase “poor truck driver” by defendants’ counsel, struck the phrase from the record, and instructed the jury to disregard it. Plaintiff’s counsel did not object to the other three uses of the phrase by defendants’ counsel. The record indicates, as to his third mention of the “poor truck driver,” defendants’ counsel corrected himself and apologized for using the phrase. We note, further, that at the time of the first objection to his use of the phrase, defendants’ counsel explained that he did not intend the use of the word “poor” in terms of the truck driver’s financial status.

After considering the statements complained of within the context of the argument made by defendants’ counsel, we conclude that counsel’s use of the phrase “poor truck .driver” was inadvertent, was not designed to mislead the jury, and did not substantially prejudice the plaintiff’s case.

Plaintiff contends defendants’ counsel vouched for the credibility of Carl, citing counsel’s statements that he did not think Carl was lying in his testimony and that counsel believed Carl. Plaintiff also argues defendants’ counsel implied plaintiff had manufactured the lawsuit by stating that, if companies like Mobil used “spotters” to help guide truck drivers, those companies would risk liability “like in this case.”

While it is improper for an attorney to vouch for the credibility of his client (see 107 Ill. 2d R. 7—106(c)(4)) or to argue the lawsuit was manufactured to explain a sustained injury (see Green v. Cook County Hospital (1987), 156 Ill. App. 3d 826, 510 N.E.2d 3), we cannot conclude, after carefully reviewing the record in its entirety, that the statements were more than harmless error and we do not believe they provide a basis to disturb the jury’s verdict.

During closing argument, defendants’ counsel read a brief portion of text, apparently from the transcript, of a medical record from which one of the witnesses at trial had previously read. Plaintiff now claims defendants’ counsel’s reading from the transcript was improper.

Plaintiff has cited no authority in this State for the proposition that it is improper per se for counsel to read to the jury portions of the trial transcript. We note that it is within the discretion of the trial judge to permit counsel to refresh a witness’ memory by reading portions of the trial transcript. (Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 530 N.E.2d 474.) As to plaintiff’s contention here, the record indicates defendants’ counsel intended to read from that portion of the transcript, which contained the witness’ own reading from a medical report, to insure accuracy. We cannot conclude such was reversible error.

Following a hearing out of the jury’s presence in which the trial judge considered whether it would be proper to read from the transcript, defendants’ counsel apologized to the jury for the frequent interruptions. Plaintiff’s counsel now claims that the apology gave the jury the false impression that plaintiff’s counsel was acting improperly or attempting to hide something from the jury.

We do not agree the apology to the jury constitutes reversible error because the record indicates the trial judge thereafter instructed that plaintiff’s counsel could object as often as he desired.

Plaintiff also asserts counsel’s reference to elements of damages in plaintiff’s case as “fruit salad,” counsel’s statement that he was “shocked” by the amount of money plaintiff claimed as damages, and counsel’s mention that Carl had never been in court before were improper comments. However, because the record indicates plaintiff failed to object to any of those statements at trial, we decline to address whether those issues require reversal, as plaintiff has failed to properly preserve the issues for review. See Friedland v. Allis Chalmers (1987), 159 Ill. App. 3d 1, 511 N.E.2d 1199.

Plaintiff next argues defendants’ counsel violated his own motion in limine which precluded plaintiff from introducing evidence of lost wages and medical bills.

Defendants’ counsel filed a motion in limine to preclude plaintiff from presenting evidence regarding a claim for lost wages. The motion stated plaintiff had not claimed resulting monetary loss from the accident, had not indicated such loss in answers to interrogatories, and, further, plaintiff’s counsel had indicated, during plaintiff’s deposition, that no such claim would be made. The motion also sought to preclude any claim for medical damages because plaintiff failed to provide defendants with bills for medical treatment.

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Bluebook (online)
558 N.E.2d 451, 200 Ill. App. 3d 773, 146 Ill. Dec. 488, 1990 Ill. App. LEXIS 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-trust-bank-v-carl-illappct-1990.