{ "id": 1588942, "name": "Irma M. Paulsen, Plaintiff-Appellee, v. Gateway Transportation Company, Inc., a Corporation, Defendant-Appellant", "name_abbreviation": "Paulsen v. Gateway Transportation Co.", "decision_date": "1969-11-04", "docket_number": "Gen. No. 69-41", "first_page": "241", "last_page": "249", "citations": [ { "type": "official", "cite": "114 Ill. App. 2d 241" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "222 NE2d 897", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "78 Ill App2d 186", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2569771 ], "year": 1966, "pin_cites": [ { "page": "207-208" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0186-01" ] }, { "cite": "126 NE2d 731", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "6 Ill App2d 115", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5140244 ], "year": 1955, "pin_cites": [ { "page": "122-123" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/6/0115-01" ] }, { "cite": "134 NE2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "8 Ill2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "year": 1956, "pin_cites": [ { "page": "311-313" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "87 Ill 235", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5343971 ], "opinion_index": 0, "case_paths": [ "/ill/87/0235-01" ] }, { "cite": "67 NE 172", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1903, "opinion_index": 0 }, { "cite": "202 Ill 509", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 847107 ], "year": 1903, "opinion_index": 0, "case_paths": [ "/ill/202/0509-01" ] }, { "cite": "98 Ill App 452", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5302141 ], "year": 1901, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-app/98/0452-01" ] } ], "analysis": { "cardinality": 589, "char_count": 9710, "ocr_confidence": 0.612, "pagerank": { "raw": 2.2048628802705727e-07, "percentile": 0.7755911638091642 }, "sha256": "82b00cfd0dfd7bba812ddc0114ad9f4fa9beb8b4638c2f03dad8fcd8a7fa3df1", "simhash": "1:9801b4f2ba34a5ca", "word_count": 1650 }, "last_updated": "2023-07-14T22:40:03.086541+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Irma M. Paulsen, Plaintiff-Appellee, v. Gateway Transportation Company, Inc., a Corporation, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE THOMAS J. MORAN\ndelivered the opinion of the court.\nThis is an action for personal injuries arising out of an auto accident on July 20, 1965. In the trial of this case the plaintiff proved medical bills amounting to $1,318.30, and claimed lost wages of $2,800 in addition thereto. The jury returned a verdict of $37,500 on behalf of the plaintiff upon her claim that the accident occasioned the surgical removal of an intervertebral disc in February of 1966. The accident occurred when the defendant\u2019s tractor-trailer struck the rear end of plaintiff\u2019s vehicle, driving it into a vehicle in front of her.\nTwo assignments of error are made. Both concern the conduct of plaintiff\u2019s counsel; first, in his examination of the plaintiff during the trial and second, during his argument to the jury.\nThe record discloses that the court reporter was not present at the time of plaintiff\u2019s opening statement and defendant\u2019s closing argument, \u201c. . . but was called in by the Court in the middle of Mr. Goldman\u2019s final argument before the jury. . . .\u201d Plaintiff, in her brief, states \u201c. . . the court can read the same and decide whether or not the trial judge erred in his judgment. ... It should also be noted that only part of plaintiff\u2019s closing argument was reported and none of the appellant\u2019s argument to the jury was reported, and, therefore, is not subject to review by the Appellate Court.\u201d\nThe plaintiff has not cited any authority for this proposition; however, in the case of Brown v. Schintz, 98 Ill App 452, 455 (1901) it was held:\n\u201cAlthough the transcript of record is not complete as to the whole case, yet if it fully and fairly presents all matters material and necessary for a decision of the questions involved, under the assignments of error, it is enough.\u201d (Citations omitted.)\nThe Brown case was later affirmed by the Supreme Court, 202 Ill 509, 67 NE 172 (1903), and in quoting from an earlier case of Bertrand v. Taylor, 87 Ill 235, it had this to add at pages 512-513:\n\u201c \u2018. . . This court cannot properly consider any question arising upon the record unless we have a full record before us, or it is made known to us in some approved manner that the transcript contains all parts of the record material to the question submitted to us for decision.\u2019 \u201d (Emphasis added.)\nThe defendant relies upon only the transcribed portion of the plaintiff\u2019s closing argument to present one of his questions of error. Even if the closing remarks of defendant\u2019s counsel were of such a nature as to provoke the final remarks of plaintiff\u2019s counsel, which is not claimed herein, still, under the Brown case, an \u201capproved manner\u201d for making such instance known to this Court would be for the plaintiff to use Supreme Court Rule 323(c). We, therefore, find no merit to plaintiff\u2019s contention in this regard.\nSome excerpts of plaintiff\u2019s closing argument to the jury, which are mostly directed at defense counsel, are as follows:\n\u201cIs that fair, ladies and gentlemen of the jury to try and deprive this poor widow of whatever she has coming? . . .\n\u201cWould you want that to happen to you, to be treated that way?\u201d\nCounsel referred to defense counsel as \u201c. . . this man who plays fast and loose with the facts in this case, such as counsel has done.\u201d The court overruled an objection and plaintiff\u2019s counsel then continued:\n\u201cThink about all of that. Think about it. It isn\u2019t decent, it isn\u2019t fair. He is trying to change the facts by trickery, he is trying to change the situation, he is trying to color the facts, to distort the facts and take them out of context.\n\u201cBut I\u2019m up to his gimmicks, I\u2019m up to his tricks.\u201d\nWhile referring to a doctor who had testified on behalf of the plaintiff, counsel, directing his remarks at defense counsel, observed the doctor had: \u201c. . . graduated from medical school in 1928 before this guy was bom.\u201d\nShortly thereafter counsel argued, \u201c. . . And while that doctor was doing that very thing for his country (referring to the fact that the doctor was a surgeon in a field hospital during the war), this attorney, the attorney for the defendants had just gotten out of his rompers and was an escapee from a playpen.\u201d\nContinuing on about the doctor, counsel stated: \u201c. . . But to now come in and find after all those 42 years of practice and a member of all these learned medical societies in connection with his profession, and find this young man who was not even bom when he started to practice medicine, who was just getting out of his rompers when the doctor was in the Army. . . .\u201d\nIn referring to defense counsel\u2019s examination of the plaintiff\u2019s physician and a myelogram examination, plaintiff\u2019s counsel argued, \u201c. . . Then Mr. Stem asked the doctor, getting back to Mrs. Paulsen, whether or not she should have a myelogram, and again they had to torture her some more. They, are not satisfied that they put her in the hospital and caused her one operation which laid her up for ten months, now they want to subject her to this horrifying, terrible ordeal of another jab with the needle into her back and go through that again. That is what they want to do, and the doctor tells you absolutely not, it can\u2019t be done.\n\u201c. . . Ladies and gentlemen of the Jury, he has the temerity, the guts, the gall to bring it up time and time again about this arthritic condition. . . .\u201d\nWhile other objections were made, the only objection to the foregoing statements is noted and set out above. Appellee maintains that counsel waived any objection because he failed to object at the time of trial.\nCertainly it is the duty of counsel to promptly object to improper conduct or argument in order that both parties receive a fair trial of the legal issues present. It is the duty of the trial court to control the proceedings to the extent necessary to insure this result. In a proper case the court has the duty to act promptly to stop misconduct. If the argument of counsel is seriously prejudicial, the court on its own motion should stop the argument and direct the jury not to consider it.\nIn a clear case, this court will reverse a judgment because of improper conduct and prejudicial statements even though timely objections have been granted and the jury instructed to disregard the remarks. In a case where prejudicial arguments or improper conduct of counsel affect the case to the extent that the litigants cannot receive a fair trial and the judicial process suffers deterioration, this court may consider such an assignment of error even though no objection was made and no ruling made or preserved thereupon by court or counsel. (Belfield v. Coop, 8 Ill2d 293, 311-313, 134 NE2d 249 (1956).)\nThis court may thus consider the assignment of error notwithstanding the failure of the defense attorney to object to each statement. The attacks were clearly attacks upon defense counsel. It is obvious that the above remarks have no application to any issue in the case. This court views remarks of plaintiff\u2019s counsel as an unwarranted characterization of defendant\u2019s counsel and a successful effort to belittle, impugn and ridicule him and thus deprive the defendant of fair treatment by the jury.\nThe constitutional right of trial by jury is not a license to counsel to indulge in abusive and prejudicial conduct to gain a verdict, nor does it grant any privilege to embarrass, belittle and abuse an adversary before a jury to such an extent that the hope of the adversary to obtain respectful consideration at the hands of the jury is destroyed or seriously jeopardized. Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 122-123, 126 NE2d 731 (1955); Vandaveer v. Norfolk & Western Ry. Co., 78 Ill App2d 186, 207-208, 222 NE2d 897 (1966).\nIn this court\u2019s view of the case, the conduct of counsel and the verdict leads us to the conclusion that plaintiff\u2019s counsel was successful and that the prejudicial argument had an obvious prejudicial effect upon the jury.\nDefendant assigns, as further error, two other incidents which occurred during trial.\nFirst, in his direct examination of the plaintiff, her counsel established that she was a widow since 1951 with two children, 18 and 30 years of age. He then inquired:\nQ. \u201cAnd this boy has been living with you ever since he was born, the 30 year old one?\u201d\nA: \u201cYes.\u201d\nQ: \u201cWhat is his condition ?\u201d\nA: \u201cYou mean, the older boy ?\u201d\nQ: \u201cYes.\u201d\nA: \u201cHe is a quadraplegic.\u201d\nQ: \u201cAnd you are his sole support?\u201d\nA: \u201cYes.\u201d\nSecond, defendant complains that, in his closing argument to the jury, plaintiff\u2019s attorney referred to the plaintiff as a \u201cpoor widow.\u201d\nBecause of our prior conclusion it is not necessary to discuss at length the propriety of the above two assignments of error. However, the court suggests some guidelines for the retrial of this case. The mere statement, upon direct examination, that the plaintiff was a widow is not in itself prejudicial. The fact that she is the sole care of a quadraplegic son was not an issue in this case and certainly should be avoided upon the retrial. The reference to the plaintiff as a \u201cpoor widow\u201d in the closing argument is an obvious effort at sympathy and prejudice. All of the foregoing taken together could easily be considered reversible error.\nThe judgment of the trial court denying the post-trial motion for a new trial is reversed and the cause remanded for a new trial in accordance with this decision.\nReversed and remanded.\nDAVIS and SEIDENFELD, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE THOMAS J. MORAN" } ], "attorneys": [ "Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellant.", "Russell J. Goldman and R. A. Jacobsen, of Rockford, for appellee." ], "corrections": "", "head_matter": "Irma M. Paulsen, Plaintiff-Appellee, v. Gateway Transportation Company, Inc., a Corporation, Defendant-Appellant.\nGen. No. 69-41.\nSecond District.\nNovember 4, 1969.\nPedderson, Menzimer, Conde and Stoner, of Rockford, for appellant.\nRussell J. Goldman and R. A. Jacobsen, of Rockford, for appellee." }, "file_name": "0241-01", "first_page_order": 247, "last_page_order": 255 }