{ "id": 2926266, "name": "ROSEMARY A. MULVEY, Admx., et al., Appellants, v. ILLINOIS BELL TELEPHONE CO., Appellee", "name_abbreviation": "Mulvey v. Illinois Bell Telephone Co.", "decision_date": "1973-01-26", "docket_number": "No. 45294", "first_page": "591", "last_page": "601", "citations": [ { "type": "official", "cite": "53 Ill. 2d 591" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "194 N.W.2d 301", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "386 Mich. 532", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1913575 ], "opinion_index": 0, "case_paths": [ "/mich/386/0532-01" ] }, { "cite": "15 Ill.2d 67", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2767796 ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0067-01" ] }, { "cite": "5 Ill. App. 3d 1057", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526168 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/1057-01" ] }, { "cite": "5 Ill. App. 3d 1057", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526168 ], "pin_cites": [ { "page": "1061" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/5/1057-01" ] } ], "analysis": { "cardinality": 829, "char_count": 19566, "ocr_confidence": 0.868, "pagerank": { "raw": 4.6182497451413664e-07, "percentile": 0.9264314251525861 }, "sha256": "2aab323e5d181bfdcd4cb8bf2f74111b25bdb2664550588ecc2461f87d3d1211", "simhash": "1:3067cdef317cc7bb", "word_count": 3364 }, "last_updated": "2023-07-14T22:46:18.842794+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROSEMARY A. MULVEY, Admx., et al., Appellants, v. ILLINOIS BELL TELEPHONE CO., Appellee." ], "opinions": [ { "text": "MR. CHIEF JUSTICE UNDERWOOD\ndelivered the opinion of the court:\nIn a wrongful death action brought by plaintiff, Rosemary Mulvey, individually and as administratrix of the estate of Thomas M. Mulvey, deceased, a jury in the circuit court of Cook County returned a verdict for the defendant, Illinois Bell Telephone Company. The Appellate Court, First District, affirmed (Mulvey v. Illinois Bell Telephone Co. (1972), 5 Ill. App. 3d 1057), and the case is now before us pursuant to certificate of importance granted by the appellate court under Supreme Court Rule 316. 50 Ill.2d R. 316.\nThe cause of action arises out of a head-on collision between two automobiles on Army Trail Road near its intersection with Swift Road in Du Page County at about 10:00 P.M. on July 8, 1963. The plaintiff\u2019s decedent, Thomas Mulvey, was driving eastbound on Army Trail Road (a 2-lane highway), and the other driver, Robert Owen, was driving westbound on the same road. As the two cars approached the intersection from opposite directions, Owen\u2019s car swerved into the eastbound lane and hit Mulvey\u2019s car after striking an unlighted sawhorse barricade bearing the legend \u201cIllinois Bell Telephone Co.\u201d which had been placed on the highway as a prank by a 15-year-old boy. Mulvey later died from injuries sustained in the collision.\nIn their evidentiary depositions, Charles Hauhe III and Gregory Doyle, who were 15 years of age on the night in question, testified that they had left a friend\u2019s house at about 9:00 P.M. that night and were walking home in a westerly direction along the north side of Army Trail Road. As they approached the intersection of Swift Road, Hauhe noticed a yellow barricade in some weeds in the bottom of a ditch on the north side of the road. \u201cJust for kicks\u201d Hauhe removed the barricade from the ditch and placed it in the center of the westbound lane of Army Trail Road near the intersection. The boys waited beside the road for a short time and observed some traffic go around the barricade without incident. They then left and walked north on Swift Road toward their respective homes.\nRobert Owen testified that as he approached the intersection he saw the lights of Mulvey\u2019s car approaching from the opposite direction at an estimated speed of 50 to 55 miles per hour. Owen first spotted an object in the road when he was about 150 to 200 feet east of it, at which time his speed was about 40 to 45 miles per hour. He did not take any immediate action to avoid the object because he \u201cwanted to know what it was.\u201d Later, when he was about 60 feet from it, he applied his brakes and started to skid before hitting the barricade. The evidence established that the skid marks left by his car were 104 feet in length, starting about 60 or 70 feet east of Swift Road in the westbound lane and proceeding into the eastbound lane of Army Trail Road where the point of impact was estimated to be about 15 feet west of the intersection.\nA patrolman who investigated the accident testified that there were no traffic signals at the intersection, although there were stop signs for Swift Road traffic to stop for Army Trail traffic. The speed limit for Army Trail traffic going through the intersection was 55 miles per hour. Another motorist, Jack Verdone, testified that at about 10:00 P.M. that night he was driving westbound on Army Trail Road and stopped at the traffic light at Route 53, which was about one mile east of Swift Road. While waiting for the light to change, he observed Owen\u2019s car turn west onto Army Trail Road from Route 53 and accelerate fast with \u201csquealing tires.\u201d It was his opinion that as the car disappeared over the crest of the hill about a quarter of a mile down the road, Owen was driving about 70 or 75 miles per hour.\nThe question of ownership of the barricade and how it got in the ditch on the north side of Army Trail Road was not definitely established. Two witnesses who lived in the area testified that about four or six weeks prior to the accident, Illinois Bell personnel had used barricades of the same type as that in evidence while doing work on a telephone pole situated on the southeast corner of Army Trail and Swift Roads; e.g., at a point across the road to the south from the place where Hauhe and Doyle found the barricade. Several witnesses also testified that they had observed a barricade lying in the ditch on the north side of Army Trail Road for a number of weeks prior to July 8, 1963. However, another witness who lived in the area and drove by the intersection regularly testified that he had seen men doing work on the pole but had never seen the barricade before the night of the incident, when he observed it on the highway and drove around it. There was testimony on behalf of the telephone company that although work had been done on the telephone pole on the southeast corner of the intersection in March of 1963, no barricades were ever used on that particular job; that \u201cmen working\u201d signs and other types of warning devices had been used instead; that barricades of the type introduced in evidence were used for buried-cable excavations or to divert traffic when men were working underground, but not when men were working above ground on poles such as the work done on the pole in question in March of 1963; that the telephone company sometimes rented barricades from another company for reasons of upkeep and loss from theft on the job; that rental barricades also bore the legend \u201cIllinois Bell Telephone Co.\u201d on them; and that in the spring of 1963 .a job involving open excavations where barricades of the type in evidence were in use had been done in Addison, Illinois, at a location several miles from the scene of the accident.\nPlaintiff\u2019s wrongful death action was brought on behalf of herself and her daughter against Robert Owen and Illinois Bell Telephone Company, alleging as to Owen that he had negligently operated his motor vehicle, and as to Illinois Bell that it had negligently permitted its equipment to remain unattended in a place where it should have foreseen that it would be found and moved by children onto the highway resulting in injuries and death to persons traveling thereon. Charles Hauhe III who had placed the barricade on the highway, was not made a party to the suit. Near the conclusion of the eight-day trial, plaintiff\u2019s claim against Owen was settled, and the jury was instructed at the close of the evidence that Owen was no longer a party to the suit. The case was submitted to the jury on the claim against defendant Illinois Bell Telephone Company, and the jury returned its verdict in favor of the defendant and against the plaintiff.\nOn this appeal, as in the appellate court, plaintiff contends that the arguments of defendant\u2019s counsel in closing argument were so prejudicial and unwarranted as to require reversal for a new trial. We will consider each of these in some detail.\nPrior to oral argument, the court determined that the evidence presented no issue as to contributory negligence on Mulvey\u2019s part, and accordingly, all tendered instructions on that matter were refused. However, plaintiff contends that this issue was nevertheless improperly brought to the attention of the jury by the following argument of defendant\u2019s counsel:\n\u201cNow, that was Owen\u2019s testimony, and you heard nothing else. Granted as Owen testified, everything happened so fast and it might have been hard for him to judge speed and so forth. But, ladies and gentlemen, when you consider those two cars coming up there, both of them approaching an intersection, each seeing another car approaching, particularly Owen and the driver of the other car, would not common sense tell you that if you were driving right up to the speed limit, you would have to slow down a little bit? Isn\u2019t that the way a reasonable person would drive coming up to an intersection?\nIf you stop to think about it, if either one of them \u2014 Owen or Mulvey \u2014 had used some care and slowed down as they were approaching that intersection even a little bit\u2014\nMR. JENKINS: If your Honor please, the Court has ruled that there is no issue in this case of Mr. Mulvey\u2019s negligence. Counsel is going far beyond propriety and is being very, very unfair. There is no issue here of Mr. Mulvey\u2019s negligence.\nTHE COURT: Counsel, I have ruled on that. Continue. You cannot do that.\nMR. KISSEL: Well, if Owen had slowed up just a little bit, there would not have been any accident.\u201d\nThe above appears as a portion of a rather lengthy argument by defense counsel concerning the question of the proximate cause of the accident. Earlier in the argument, reference was made to the fact that another driver traveling in the same direction as Owen earlier that evening had seen the barricade in time and was able to slow down and go around without hitting it. Next followed a discussion concerning the manner in which Owen had been driving, the gist of which was that it was Owen\u2019s improper driving which caused the accident. Then came the above-quoted argument. In view of the fact that the issue of Mulvey\u2019s contributory negligence had been removed from the case, we agree that it would have been better if there had been no direct reference to Mulvey. However, we note that after the objection the rhetorical question was rephrased to refer only to Owen. Furthermore, it appears to us that the drift of the argument in question concerned the issue of proximate cause \u2014 suggesting to the jury that it was Owen, not Illinois Bell Telephone Company, who caused the accident, and further, that the split-second timing of the various factors which combined to cause the accident, including the'speed of cars approaching the intersection and these cars in particular, could not reasonably have been foreseen by the defendant. In our opinion, the argument does not constitute reversible error when it is read in context.\nPlaintiff next contends that the following argument by defense counsel was unduly prejudicial:\n\u201cDid you hear one word as to where Mulvey had been earlier that evening, what he was doing? He was separated from his wife and was way out there in Du Page County.\nWouldn\u2019t you have expected that the plaintiff would have had someone come in and testify as to where Mulvey had been and what he had been doing? Remember, he brought in plenty of other people.\nMR. JENKINS: If your Honor please, you have ruled that Mr. Mulvey was not at fault in this accident. This argument has nothing to do with that particular issue.\nMR. KISSEL: Yes, it does.\nMR. JENKINS: It is only to inject prejudice, as all of Counsel\u2019s argument has been. By the way, it is completely immaterial and unfair.\nTHE COURT: Counsel, contain yourself. You will have a chance to answer him.\nMR. KISSEL: Well, I won\u2019t dwell on that. But you heard not one single word, and if it had been favorable, I am sure you would have heard something.\u201d\nWe concur with plaintiff that this matter was entirely immaterial and that the objection should have been sustained. However, we cannot agree that this minor portion of defense counsel\u2019s argument was so prejudicial as to deprive plaintiff of a fair trial.\nAnother part of defense counsel\u2019s closing argument which plaintiff obj ects to was a comment on the fact that Robert Owen was no longer a party to the lawsuit. After noting that Owen and his defense attorney had been in court until the last day that evidence was heard, defense counsel made the following remarks:\n\u201cAnd then suddenly he is no longer here. You are told just that he is no longer a party to this lawsuit, Robert F. Owen is no longer a party to this lawsuit.\nWell, ladies and gentlemen, I leave it to your common sense. The mere fact that he is no longer a party to this lawsuit does not mean that he was not responsible for this accident, and your good common sense would give you the answer there.\nI am not here to say there is anything wrong in Owen no longer being a party because he was and he is responsible for that accident.\nBut what I say is wrong, ladies and gentlemen, is for Plaintiff\u2019s Counsel to come in here now and say, say in effect to you, \u2018Ladies and gentlemen, let\u2019s forget about Robert F. Owen\u2014let\u2019s just concentrate on The Telephone Company\u2014give us that $75,000.00\u2019, that he is talking about.\u201d\nIt would suffice to note that plaintiff made no obj ection to this argument and is therefore precluded from raising it for the first time on appeal. (County of Cook v. Colonial Oil Corp. (1958), 15 Ill.2d 67.) But in any event we do not find the remarks uncalled for under the circumstances. It must be remembered that the entire trial proceeded as an action by plaintiff against both Owen and Illinois Bell Telephone Company, and during the course of the trial plaintiff attempted to establish that Owen\u2019s negligence was a proximate cause of the accident. Then, just before the closing arguments, the jury was informed that Owen was no longer a party to the suit. During the course of plaintiff\u2019s closing argument, plaintiff\u2019s counsel suggested indirectly that a person driving 50 miles an hour perhaps could not have stopped in time to avoid the barricade and then went on to indicate that the question of whether Owen was guilty of carelessness, whether he was going too fast, whether he was not alert, or whether he made the wrong move in an emergency was not material anyway since the question of responsibility now focused on Illinois Bell Telephone Company. In our opinion, this invited a response by the defendant, and we think it was not improper for defendant to point out that the fact that Owen had been dismissed from the suit did not mean that he was not responsible for the accident or that his actions should be disregarded altogether in determining the liability of Illinois Bell Telphone Company. Defense counsel specifically stated that there was nothing wrong in Owen no longer being a party to the suit, and no mention was made of Owen\u2019s covenant not to sue or any of the details of the settlement arrived at between plaintiff and Owen near the conclusion of the suit. In this setting we find no error in the complained-of remarks.\nPlaintiff also assigns as error defense counsel\u2019s rhetorical inquiry as to why plaintiff did not sue Charles W. Hauhe III:\n\u201cRemember way back when we started, you promised that you would put the blame where it really belongs here, and your common sense will enable you to do that.\nAnother thing, ladies and gentlemen, along this same line, you heard from the depositions that were read of Gregory Doyle and Charles W. Hauhe III, who put the barricade in the road. There is no question but that it was Hauhe.\nWhy did he put it there? For kicks. There is no question about that either.\nWith that background, think about this for a moment. Why didn\u2019t plaintiff\u2019s counsel sue Charles W. Hauhe?\u201d\nPlaintiff\u2019s objection to the argument was sustained, the jury was instructed to disregard the question about not suing Hauhe, and we are unable to concur with plaintiff\u2019s contention that the remark was necessarily error, or if so, that it constituted reversible error.\nAt the time of the trial of this case, the plaintiff\u2019s name was Rosemary Nugent by reason of her remarriage to James Nugent. On voir dire examination, defense counsel was permitted to inquire of the jurors whether they were acquainted with the plaintiff under the name of either Mulvey or Nugent. Plaintiff asserts that since evidence as to a surviving spouse\u2019s remarriage is immaterial in assessing damages in a wrongful death action, it was improper to let this matter be brought before the jury on voir dire examination. Plaintiff also alleges as error certain remarks of counsel during closing argument pertaining to the extent of damages. It is unnecessary to reach these issues on this appeal since we believe it is evident that the jury, having found the defendant not liable, never reached the question of damages. (See Thompson v. Peters (1972), 386 Mich. 532, 194 N.W.2d 301.) In so concluding, we recognize that there may be cases in which errors which go to the question of damages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury\u2019s decision on the issue of liability. However, we do not believe this to be such a case.\nThe judgment of the Appellate Court, First District, affirming the judgment of the circuit court of Cook County entered on the jury verdict in favor of the defendant is affirmed.\nJudgment affirmed.", "type": "majority", "author": "MR. CHIEF JUSTICE UNDERWOOD" }, { "text": "MR. JUSTICE KLUCZYNSKI,\ndissenting:\nI dissent from the conclusion reached by the majority and would reverse and remand the cause for a new trial.\nThe appellate court granted plaintiff\u2019s application for a certificate of importance in which her sole contention was that the disclosure to the jury, during voir dire, of her remarriage was improper. As the appellate court noted, this precise issue \u201chas not been discussed in an Illinois case ***.\u201d (5 Ill. App. 3d at 1061.) Our constitution and Supreme Court Rule mandate that upon certification by the appellate court an appeal to this court is a matter of right. Ill. Const. (1970), art. VI, sec. 4(c); 50 Ill.2d R. 316.\nThe majority of this court, however, have found it unnecessary to consider the precise question upon which the certificate of importance was obviously issued. This was accomplished by classifying the matter as relating only to damages. Since the jury determined that the defendant was not liable in the present case, the majority conclude the jury never reached the damage issue. They recognize, however, \u201cthat there may be cases in which errors which go to the questions of damages may be so pervasive and prejudicial as to create the likelihood that they may have affected a jury\u2019s decision on the issue of liability.\u201d\nDuring closing argument a defense reference was made to deceased\u2019s method of driving on the night of the accident. This statement was made despite the trial court\u2019s ruling that no issue of contributory negligence had been presented. The majority dismiss plaintiff\u2019s contention of error though they observe \u201cthat it would have been better if there had been no direct reference to [deceased].\u201d\nNotwithstanding the trial court\u2019s admonition on this matter, defense counsel persisted by commenting that plaintiff had failed to present any evidence as to deceased\u2019s activities prior to the accident. He further alluded to the fact that deceased, who was separated from plaintiff, \u201cwas way out there in Du Page County.\u201d My colleagues have dismissed these comments as not significantly prejudicing plaintiff.\nSimilarly, emphasis was placed upon the fact that the youth who admittedly placed the barricade on the roadway was not sued. The majority disagree that this reference was error or, even if so construed, that it constituted reversible error.\nAfter consideration of defense counsel\u2019s closing argument, I am of the opinion that the jury\u2019s attention was directed to matters which were immaterial as to the issue of liability and which were sufficiently prejudicial to deprive plaintiff of a fair trial. This prejudice was further compounded by the disclosure to the jury of plaintiff\u2019s remarriage. Under the circumstances, the importance of the issue which originally brought this case before us should have been considered.", "type": "dissent", "author": "MR. JUSTICE KLUCZYNSKI," } ], "attorneys": [ "JAMES A. DOOLEY, of Chicago, for appellants.", "SIDLEY & AUSTIN, of Chicago (JAMES W. KISSEL, of counsel), for appellee." ], "corrections": "", "head_matter": "(No. 45294.\nROSEMARY A. MULVEY, Admx., et al., Appellants, v. ILLINOIS BELL TELEPHONE CO., Appellee.\nOpinion filed Jan. 26, 1973.\nRehearing denied April 2, 1973.\nKLUCZYSNKI, J., dissenting.\nJAMES A. DOOLEY, of Chicago, for appellants.\nSIDLEY & AUSTIN, of Chicago (JAMES W. KISSEL, of counsel), for appellee." }, "file_name": "0591-01", "first_page_order": 635, "last_page_order": 645 }