{ "id": 5260628, "name": "Eldron McKee, et al., Plaintiffs-Appellees, v. Yellow Cab Company, a Corporation, and Herman Levine, Defendants-Appellants", "name_abbreviation": "McKee v. Yellow Cab Co.", "decision_date": "1962-06-12", "docket_number": "Gen. No. 48,612", "first_page": "415", "last_page": "422", "citations": [ { "type": "official", "cite": "36 Ill. App. 2d 415" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "129 NE2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "7 Ill App2d 21", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5143669, 5144102 ], "year": 1955, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/7/0021-02", "/ill-app-2d/7/0021-01" ] } ], "analysis": { "cardinality": 648, "char_count": 12165, "ocr_confidence": 0.538, "sha256": "828d4325197a40e40814912c768cf4832573cb969d693a37b2ba653dcb638e0e", "simhash": "1:7b053c9cba2ad438", "word_count": 2048 }, "last_updated": "2023-07-14T21:30:40.003563+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Eldron McKee, et al., Plaintiffs-Appellees, v. Yellow Cab Company, a Corporation, and Herman Levine, Defendants-Appellants." ], "opinions": [ { "text": "MR. PRESIDING JUSTICE FRIEND\ndelivered the opinion of the court:\nEldron and Geraldine McKee, husband and wife, and their three, minor children brought suit for damages growing out of personal injuries sustained by them when the automobile in which they were driving collided with a taxicab of the Yellow Cab Company operated by Herman Levine, its employee. Eldron McKee was driving plaintiffs\u2019 car. Plaintiffs\u2019 statement of claim alleged, and the answers of defendants denied, that each of the plaintiffs was in the exercise of due care, that defendants were guilty of negligent or wilful misconduct, and that each of the plaintiffs suffered injuries as the result of the alleged acts of the cab company or its employee. The jury returned verdicts, and the. court entered judgment, in favor of plaintiffs in the following amounts:\nEldron McKee ................... $1000.00\nGeraldine McKee................. 2100.00\nLarry McKee .................... 1000.00\nPatricia McKee .................. 750.00\nPaul McKee ..................... 200.00\nDefendants made a post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial; the court entered an order denying defendants\u2019 motion. Defendants appeal from that order.\nDefendants contend that the verdicts were against the manifest weight of the evidence. In addition, they say that plaintiffs\u2019 evidence was in direct and diametrical conflict, not only with the evidence of defendants, hut with plaintiffs\u2019 own answers to interrogatories; and defendants assert that, in a case so close on the facts, they are entitled to a new trial because prejudicial errors committed by the trial court may well have turned the scale in favor of the successful parties.\nThe accident occurred February 9,1957 at the intersection of Spaulding and Fifth Avenues in Chicago. Mr. Levine was traveling south on Spaulding, which is wide enough for two cars; Fifth Avenue is almost twice that wide. About twelve to twenty feet hack of the crosswalk to Fifth Avenue there was a stop sign governing southbound traffic on Spaulding. Mr. Levine stated that he was coming from the north and that in the block before he reached the intersection the highest speed he attained was about eighteen to twenty miles an hour; that he stopped one or two seconds at the stop sign at the intersection; that there were trucks parked in a vacant lot on the right side of Spaulding, blocking off his view of the entire intersection on his way to the corner; that after stopping, he proceeded into Fifth Avenue at a speed under five miles an hour \u2014 probably three or four miles an hour; that as he proceeded out, he saw plaintiffs\u2019 car coming from the west; that the front of his cab had just passed the crosswalk by about a car length out in the street; that the plaintiff driver was traveling about thirty to thirty-five miles per hour on the left-hand lane of Fifth Avenue going east. When Mr. Levine saw plaintiffs\u2019 car proceeding east at the stated rate of speed, he slammed on his brakes and stopped just about on the center line. Plaintiffs\u2019 car braked a couple of times and finally touched the cab driver\u2019s right front fender and stopped. After the impact plaintiffs\u2019 car came to rest right up against the right front fender of the cab, which was not moved by the impact. Both drivers got out of their cars to look the situation over. Plaintiffs\u2019 bumper was lying up against the fender of the cab, the cab\u2019s right fender was dented, and plaintiffs\u2019 car had a bright hard scratch on the bumper. Mr. Levine stated that he had a conversation with the plaintiff driver and his wife, who had stepped out of the car by that time. The cab driver said: \u201cI\u2019m sorry about it, and if anybody is hurt here, I\u2019d be glad to take anyone to the hospital.\u201d The plaintiff driver said that would not be necessary. The parties waited for the police, both drivers talked to the officers, and after this conversation both cars left the scene of the accident. The only witnesses who testified on the trial were the McKees and Levine.\nDefendants charge that plaintiff counsel\u2019s misstatement that Mr. McKee\u2019s original answer to interrogatory 40 had been superseded seriously prejudiced the jury against defendants, and constituted reversible error. The interrogatory reads: \u201cDid you see the taxi cab in question at any time before the collision? If so, where was it and where was your motor vehicle at that time (describe the location and state of motion of each).\u201d Mr. McKee made the following unqualified answer to the interrogatory: \u201cNo.\u201d Mrs. McKee answered as follows: \u201cSaw taxi cab just before he struck our car, when it was in front of our car.\u201d On trial Mr. McKee changed his answer by testifying : \u201cI watched the cab all the way up until the time of the collision. ... I would say he slowed down a little bit just seconds before we collided. The cab was about five or eight feet away when it slowed down.\u201d Queried as to his unqualified negative answer to defendants\u2019 interrogatory 40, Mr. McKee said: \u201cI don\u2019t remember giving answers to certain questions concerning this accident. I never saw Defendants\u2019 Exhibit 1 [the interrogatory and answer] for identification before.\u201d\nIt appears that at this point in the examination of Mr. McKee the following colloquy occurred: \u201cMr. Gustafson [counsel for plaintiffs]: If your Honor please, I think since the interrogatories have been amended by the Court order, that the original interrogatory and answer is no longer in the Court file.\u201d After further examination as to the interrogatory, counsel for defendants advised the court that it was not amended by court order, whereupon Mr. Gustafson asserted that \u201cleave of Court was obtained.\u201d This statement was incorrect. What actually happened was that Mr. McKee had subsequently filed with the clerk of the court an amended and a different answer to the interrogatory, but without leave of court. Defendants\u2019 counsel argued that Mr. McKee had made a prior contradictory statement. The court overruled his objection. After proceedings outside the presence of the jury it was discovered that no court order had been obtained permitting any amendment to the answer to the interrogatory. Nevertheless the trial court refused to instruct the. jury to disregard the self-serving amended answer that had been filed without leave of court. As a result, the misstatement of plaintiffs\u2019 counsel that such an order had been obtained led to his being forced to read a self-serving retraction of Mr. McKee\u2019s statement in order to avoid the false impression that the court had granted Mr. McKee leave to correct his answer, when such was not the fact, and the implication that defendants\u2019 counsel was suppressing an answer filed by leave of court. These proceedings constituted prejudicial error which well may have affected the verdict.\nFurther error is charged with respect to the medical testimony. Dr. Henry E. Bielinski diagnosed the injuries of Mr. and Mrs. McKee. The only medical testimony for the defendants was that of Dr. Leonard Bichard Smith. He had not examined any of the plaintiffs and testified entirely in response to hypothetical questions; his responses were at variance with those of Dr. Bielinski. It appears that after Dr. Smith had testified and left the courtroom, and after all reasonable opportunity to prevail upon him to return for further testimony had passed, plaintiffs\u2019 counsel, as defendants say, \u201cpioneering in a new technique in the defense of personal injury cases,\u201d called Mr. Jesmer, sole counsel for the defendants on the trial of the case, to the stand as an adverse witness under section 60. Mr. Jesmer expressed his surprise to the court at being called as a witness, whereupon plaintiffs\u2019 counsel advised the court: \u201cI will call him as my own witness.\u201d Mr. Jesmer objected and moved that the record show that he made a continuing objection to all questions and asked that all answers thereto be stricken. Thereupon plaintiffs\u2019 counsel elicited from Mr. Jesmer the following testimony:\n\u201cI called Dr. Leonard Smith as an expert witness in this case. I have known him personally for three years. He knows my father. My father is also an attorney for the Yellow Cab Company. He has known Dr. Smith for more than three years. I know Dr. Smith personally and feel free to use his telephone in his home on occasions. Dr. Smith is also treating me professionally at the present time for an injury to the knee area. He has been treating me for about eight days. He did not hospitalize me, put a cast on my knee, put any traction on my knee, nor did he put any mechanical brace or appliance on my knee other than a Tensor bandage. That knee doesn\u2019t cause me pain and it never did, it is stiff as a board. Dr. Smith also gave me a cortisone shot into the knee. Just the elastic bandage and a cortisone shot.\u201d\nFollowing this testimony the court ruled that the answers to the questions commencing with the treatment that was given by Dr. Smith to Mr. Jesmer would be stricken; that the point up to where he had testified where he was treated professionally by Dr. Smith would stand. Mr. Jesmer then asked the. privilege of making a statement, but the court overruled his request: \u201cNo, there will be no statements. I am asking the jury to disregard the last part \u2014 it is only limited to the treatment.\u201d\nAs a result of this procedure counsel for plaintiffs made it necessary for Mr. J esmer, defendants\u2019 counsel, to testify that Dr. Smith had treated Mr. Jesmer in a different way from that which he might have recommended for hypothetical patients such as Mr. or Mrs. McKee. Neither Dr. Smith nor any other doctor was called to compare or contrast the injuries to the knee of Mr. or Mrs. McKee with the discomfort from which Mr. Jesmer suffered. Once counsel\u2019s purpose became apparent the court did stop this type of proceeding, but because the court stopped it plaintiff\u2019s counsel prevailed upon the court not to allow Mr. Jesmer to make a statement explaining the condition of his knee, which was not an injury at all; Mr. Jesmer wanted to make it clear to the jury that his condition did not resemble Mr. or Mrs. McKee\u2019s injury. Despite the trial court\u2019s ruling, plaintiffs\u2019 counsel in his final argument referred to Mr. Jesmer\u2019s knee as though that were a proper matter of consideration. In asking for damages in the case and in summing up his argument, he concluded his remarks to the jury by saying: \u201cAs you notice, Mr. Jesmer didn\u2019t say much about asking for pain and suffering, because as he himself says, \u2018an injury is severe or not; you\u2019ve got it or you haven\u2019t,\u2019 just as he himself has. Thank you.\u201d\nIt seems obvious that the purpose of plaintiffs\u2019 counsel in calling defendants\u2019 only counsel to the stand was to insinuate that Dr. Smith, who had not examined the plaintiffs but who had treated defendants\u2019 counsel, gave defendants\u2019 counsel better or at least different care for an injured knee than he would have prescribed for persons injured by Yellow Cabs \u2014 this despite the fact that there was no showing of similarity in the injuries and accordingly no relevance to the case at bar. The effect of this course of procedure on the part of plaintiffs\u2019 counsel was to put both Dr. Smith and defendants\u2019 lawyer in a bad light in the eyes of the jury.\nBecause of the errors committed, defendants are entitled to a new trial. \u201c. . . unless the. reviewing court can say that on retrial the result could not be otherwise, the cause must be remanded toward the end that the party bringing error may secure substantial justice.\u201d Sims v. Chicago Transit Authority, 7 Ill App2d 21, 29, 129 NE2d 23 (1955).\nThe order of the Municipal Court is reversed and the cause remanded for a new trial.\nOrder reversed and cause remanded for a new trial.\nBRYANT and BURKE, JJ., concur.", "type": "majority", "author": "MR. PRESIDING JUSTICE FRIEND" } ], "attorneys": [ "Julius Jesmer and Robert D. Jesmer, of Chicago (William C. Wines, of counsel), for appellants.", "Unger & Unger, of Chicago (Merwin Auslander, of counsel), for appellees." ], "corrections": "", "head_matter": "Eldron McKee, et al., Plaintiffs-Appellees, v. Yellow Cab Company, a Corporation, and Herman Levine, Defendants-Appellants.\nGen. No. 48,612.\nFirst District, Second Division.\nJune 12, 1962.\nJulius Jesmer and Robert D. Jesmer, of Chicago (William C. Wines, of counsel), for appellants.\nUnger & Unger, of Chicago (Merwin Auslander, of counsel), for appellees." }, "file_name": "0415-01", "first_page_order": 425, "last_page_order": 432 }