{ "id": 3078170, "name": "JAMES PRINCIPATO, JR., Plaintiff-Appellee, v. HENRY RUDD et al., Defendants-Appellants", "name_abbreviation": "Principato v. Rudd", "decision_date": "1981-11-24", "docket_number": "No. 81-922", "first_page": "362", "last_page": "368", "citations": [ { "type": "official", "cite": "102 Ill. App. 3d 362" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "54 Ill. 2d 592", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "299 N.E.2d 108", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. 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Ed.", "opinion_index": 0 }, { "cite": "271 U.S. 685", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "143 N.E. 866", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1926, "opinion_index": 0 }, { "cite": "312 Ill. 299", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5120427 ], "year": 1926, "pin_cites": [ { "page": "309-10" } ], "opinion_index": 0, "case_paths": [ "/ill/312/0299-01" ] }, { "cite": "72 Ill. 2d 585", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "382 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. 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App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178362 ], "year": 1980, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0400-01" ] }, { "cite": "401 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 1110", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3229213 ], "pin_cites": [ { "page": "1124" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/1110-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] } ], "analysis": { "cardinality": 735, "char_count": 12899, "ocr_confidence": 0.913, "pagerank": { "raw": 1.2864068652415118e-07, "percentile": 0.6187737200122478 }, "sha256": "a1b7fe28ce997d1c65b8d5bebafea938c6a5f3ca68c3fb32ad011030386510e0", "simhash": "1:763529e3d1cc85d4", "word_count": 2116 }, "last_updated": "2023-07-14T17:07:42.734695+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES PRINCIPATO, JR., Plaintiff-Appellee, v. HENRY RUDD et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE DOWNING\ndelivered the opinion of the court:\nDefendants Henry Rudd, Marion Rudd, Rudd Container Company, and Anthony Reda appeal the granting of a new trial to plaintiff James Principato, Jr. Plaintiff filed a one-count negligence complaint concerning a truck collision. After a jury verdict for defendants, the trial court granted plaintiff\u2019s motion for a new trial. We granted defendants leave to appeal under Supreme Court Rule 306. (73 Ill. 2d R. 306.) Plaintiff also appeals the trial court\u2019s denial of his motion for judgment notwithstanding the verdict.\nPlaintiff James Principato, Jr., was an electrician for Advance Neon Sign Company. He was injured on May 17,1974, while repairing a sign on Western Avenue in Chicago. Plaintiff was driving a 30-foot truck with a snorkel unit that extended about 42 inches beyond the truck when in a fully closed position. Plaintiff pulled the truck into a driveway, blocking the parking lane on Western Ave. The snorkel unit extended into the near traffic lane when closed, at a height of about 9 to 13 feet above the ground. Thus, cars passed under the extended boom. It is disputed whether or not a red flag was attached to the rear of the truck, and whether or not plaintiff placed a rubber warning cone in the street.\nPlaintiff worked on the sign while sitting in the snorkel unit, raising it into the air. After he completed the repairs, plaintiff lowered the snorkel unit and locked it into place. He then noticed a handprint on the sign and briefly climbed a ladder affixed to the side of the truck to wipe the print.\nAnthony Reda, defendant, was employed as a truck driver for defendant Rudd Container Company. While plaintiff was on the ladder, a truck driven by Reda hit a portion of plaintiff\u2019s truck that extended from its body. Plaintiff was thrown into the air and landed on his back on the truck. He was taken to a nearby hospital.\nThe degree of plaintiff\u2019s injuries was a matter greatly disputed at trial. It is undisputed that soon after the accident, plaintiff left his job at Advance Neon Sign Company and opened a small restaurant. This resulted in a loss of reported income. Two medical witnesses for plaintiff testified to injuries which weakened his back, precluding heavy work and bending. These injuries might be permanent. The defense did not call any medical witnesses.\nIn closing argument, plaintiff\u2019s counsel asked for approximately $500,000 in damages. The jury returned a verdict for defendants. The trial court subsequently granted plaintiff\u2019s motion for a new trial.\nI\nInitially, we dispose of plaintiff\u2019s contention that the trial court erred in denying his motion for judgment notwithstanding the verdict. Employing the Pedrick standard (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504), we cannot say that the evidence, when viewed in the light most favorable to defendants, so overwhelmingly favors plaintiff that no contrary verdict based on the evidence could ever stand. Indeed, substantial issues of fact were presented to the jury, including whether or not plaintiff used a red warning flag and a rubber warning cone. The trial court properly denied plaintiff\u2019s motion for judgment notwithstanding the verdict.\nII\nPlaintiff\u2019s motion for a new trial was based on certain trial errors and on newly discovered evidence. The order granting plaintiff\u2019s motion stated that plaintiff was granted a new trial on the issues of liability and damage. We therefore review all the grounds for a new trial urged by plaintiff in this court and properly preserved by the post-trial motion.\nA.\nThe trial errors urged by plaintiff fall into three groups: (i) statements by defense counsel in the opening statement that were not supported by the evidence; (ii) defense counsel\u2019s prejudicial references to workmen\u2019s compensation during cross-examination; and (iii) the prejudicial remarks of defense counsel in closing argument. Plaintiff\u2019s theory is that the cumulative effect of these errors, especially where the evidence was close, justifies the granting of a new trial.\nPlaintiff\u2019s complaints about defense counsel\u2019s opening statement are, for the most part, unsubstantiated by the record. Counsel is given a certain latitude in the opening statement as to his expectation of what the evidence will prove. (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1124, 401 N.E.2d 1246.) Defense counsel\u2019s opening statement fell within this range. Of the six statements specifically claimed as error by plaintiff, four were substantially correct statements of the evidence adduced at trial. One other statement was clearly wrong, but plaintiff\u2019s counsel made the same misstatement in his opening statement, and it appears that both counsel misinterpreted the discovery evidence. The last statement, which concerned plaintiff\u2019s dreams and ambitions, would have been more properly reserved for closing argument.\nDuring cross-examination, defense counsel referred to workmen\u2019s compensation twice. Once was during the cross-examination of plaintiff\u2019s medical witness. Defense counsel asked the witness if he had occasion in the past to testify in court and before the \u201cIllinois Workmen\u2019s Compensation Commission.\u201d No objection was made by plaintiff to this question. Thus, any claim of error is waived. (Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 413, 408 N.E.2d 1112, appeal denied (1980), 81 Ill. 2d 606.) The other reference was during the cross-examination of plaintiff\u2019s employer, when defense counsel asked if the witness had seen certain reports \u201cin connection with [plaintiff\u2019s] claim against you for Workmen\u2019s Compensation?\u201d Plaintiff\u2019s objection was sustained, and the trial court admonished the jury to disregard the statement.\nDiscussion of workmen\u2019s compensation payments in a personal injury action by the injured employee against a third party requires the reconciliation of two competing interests. Evidence of such payments are generally not admissible as substantive evidence. (Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 568, 190 N.E.2d 315.) On the other hand, it is proper to show that a witness has a financial interest in the litigation. Under the Workers\u2019 Compensation Act, compensation paid to the employee must be repaid out of any recovery received by the employee from a third party. (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(b).) In reconciling these interests, the supreme court held that it is proper to cross-examine an agent of the employer regarding the existence of this potential recovery, but not the amount of it. (Sweeney v. The Max A. R. Matthews & Co. (1970), 46 Ill. 2d 64, 70-71, 264 N.E.2d 170.) At trial, out of the presence of the jury, defense counsel indicated to the court that he wanted to establish the existence, but not the amount of the recovery. Nevertheless, the trial court refused to allow any evidence of workmen\u2019s compensation. Defense counsel should have been allowed to cross-examine the witness as requested.\nPlaintiff complains of four statements made by defense counsel in closing argument. Plaintiff did not object to two of the statements; therefore, any complaint now is waived. (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 598, 294 N.E.2d 689.) Objections to two other comments were made and sustained. First, defense counsel stated that plaintiff was wrong in asking for $500,000 for injuries that were not more than bumps and bruises. He continued:\n\u201cThat\u2019s-not the way these cases are to be tried. This is a Court of law. It is not a giveaway program, it\u2019s not a welfare program.\nMR. MADDUX: I object to that comment, your Honor.\nTHE COURT: Sustained.\u201d\nThis statement was designed to arouse the prejudice or passion of the jury, and was thus improper. (See Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53, 382 N.E.2d 409, appeal denied (1979), 72 Ill. 2d 585.) The thrust of the statement, however, goes to the amount of damages sought by plaintiff, not liability.\nSecond, defense counsel disparaged plaintiff\u2019s expert witness with the remark, \u201c[o]f course, they bring in this Dr. Fitzsimmons, a professional medical witness ** * Plaintiff\u2019s objection was sustained. Defendant argues that this remark was proper by claiming that since Dr. Fitzsimmons was a \u201cprofessional man\u201d and was testifying as a medical expert, the remark was accurate and true. We believe the remark suggested that Dr. Fitzsimmons was a \u201cprofessional witness,\u201d and was thus improper. See Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53; Mattice v. Klawans (1924), 312 Ill. 299, 309-10, 143 N.E. 866, cert. denied (1926), 271 U.S. 685, 70 L. Ed. 1151, 46 S. Ct. 637.\nIn sum, the trial errors in this case consisted of two improper statements by defense counsel in closing argument and an arguably improper statement in opening statement. A reviewing court will not reverse the granting of a new trial unless a clear abuse of discretion is affirmatively shown in the record. (Harrison v. Chicago Transit Authority (1977), 48 Ill. App. 3d 564, 566, 363 N.E.2d 81, appeal denied (1977), 66 Ill. 2d 630; Torrez v. Raag (1976), 43 Ill. App. 3d 779, 782, 357 N.E.2d 632, appeal denied (1977), 65 Ill. 2d 585.) The trial court is in a better position than the reviewing court to assess the prejudicial effect of improper conduct. Harrison, 48 Ill. App. 3d 564, 566; Torrez, 43 Ill. App. 3d 779, 783.\nWe believe that, based on the record, the trial court abused its discretion by granting a new trial in this case. Plaintiff cites Kolakowski v. Voris (1981), 94 Ill. App. 3d 404, 418 N.E.2d 1003, for the proposition that in a trial where the evidence is close, the quantity of error required for the granting of a new trial is less than in a case where the evidence is not close. We think the error in this case was slight and not sufficient to prejudice the jury. We must conclude that if the trial court\u2019s decision to grant a new trial was based on the cumulative effect of trial errors, that decision cannot stand.\nB.\nPlaintiff also contends that he is entitled to a new trial because of newly discovered evidence. The new evidence consists of the testimony of George Beecher, an employee of Advance Neon Sign Company, who arrived at the scene of the accident shortly after it occurred. He would testify that he found the rubber cone under plaintiff\u2019s truck, and that he found the flag on the ground and reattached it to the truck. Beecher also made numerous scale drawings of the scene of the accident. He also claims that he did not advise plaintiff of his investigation until after the jury verdict.\nApplications for a new trial based on newly discovered evidence are not looked upon with favor and are subject to close scrutiny. (Halka v. Zupan (1979), 68 Ill. App. 3d 616, 620, 386 N.E.2d 439.) In order to obtain a new trial for such reason, it must appear that due diligence was used to discover and procure the evidence for trial. (Pritchett v. Steinker Trucking Co. (1968), 40 Ill. 2d 510, 512, 240 N.E.2d 684.) The rationale behind such a strict requirement is to prevent the losing party at trial from searching for more favorable evidence to present at another trial. (Pritchett, 40 Ill. 2d 510, 512-13.) Where the newly discovered evidence consists of testimony of the employees of the party seeking the new trial, it will rarely be said that such a party exercised due diligence in attempting to procure the evidence. Halka, 68 Ill. App. 3d 616, 620; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 674-75, 299 N.E.2d 108, appeal denied (1973), 54 Ill. 2d 592.\nApplying these principles to the facts in the instant case, we cannot say that plaintiff exercised due diligence in seeking this evidence. While Beecher was not an employee of plaintiff, he was an employee of plaintiffs employer. Plaintiffs employer fully cooperated with plaintiffs case as would be expected in light of their workmen\u2019s compensation lien. It is difficult to understand how and why plaintiff could not have discovered this evidence before trial. If the trial court\u2019s decision to grant a new trial was based on newly discovered evidence, the decision was an abuse of discretion.\nIn accordance with these views, the order of the circuit court of Cook County granting plaintiff\u2019s motion for a new trial must be reversed, and this cause is remanded for the reinstatement of the jury verdict and entry of judgment thereon.\nReversed and remanded.\nSTAMOS and PERLIN, JJ., concur.", "type": "majority", "author": "JUSTICE DOWNING" } ], "attorneys": [ "Van Duzer, Gershon, Jordan & Petersen, of Chicago (Horace W. Jordan and Edward W. Maltzen, of counsel, for appellants.", "William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce M. Lane, of counsel), for appellee." ], "corrections": "", "head_matter": "JAMES PRINCIPATO, JR., Plaintiff-Appellee, v. HENRY RUDD et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 81-922\nOpinion filed November 24, 1981.\nVan Duzer, Gershon, Jordan & Petersen, of Chicago (Horace W. Jordan and Edward W. Maltzen, of counsel, for appellants.\nWilliam D. Maddux & Associates, of Chicago (William D. Maddux and Bruce M. Lane, of counsel), for appellee." }, "file_name": "0362-01", "first_page_order": 384, "last_page_order": 390 }