{ "id": 2946622, "name": "Franklin H. Allison et al., Minors, by Franklin H. Allison, Their Father and Next Friend, Plaintiffs-Appellants, v. Charles M Howell, Defendant-Appellee; (Charles M. Howell, Counterplaintiff, v. Franklin H. Allison, Counterdefendant.)", "name_abbreviation": "Allison v. Howell", "decision_date": "1974-09-26", "docket_number": "No. 73-9", "first_page": "287", "last_page": "292", "citations": [ { "type": "official", "cite": "22 Ill. App. 3d 287" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "6 Ill.App.3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466155 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0714-01" ] }, { "cite": "31 Ill.2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832377 ], "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0069-01" ] }, { "cite": "11 Ill.App.3d 16", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2932814 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0016-01" ] }, { "cite": "41 Ill.App.2d 95", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2452556 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0095-01" ] }, { "cite": "91 Ill.App.2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2821085 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0001-01" ] }, { "cite": "74 F.2d 80", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 964373 ], "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/f2d/74/0080-01" ] }, { "cite": "101 Ill.App.2d 366", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2900375 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/101/0366-01" ] }, { "cite": "32 Ill.App.2d 37", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5233283 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0037-01" ] }, { "cite": "61 Ill.App.2d 395", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5301049 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/61/0395-01" ] }, { "cite": "2 Ill.2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12131280 ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0511-01" ] }, { "cite": "228 Ill. 338", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5628369 ], "opinion_index": 0, "case_paths": [ "/ill/228/0338-01" ] }, { "cite": "108 Ill. 538", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 831477 ], "opinion_index": 0, "case_paths": [ "/ill/108/0538-01" ] }, { "cite": "378 Ill. 180", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2549002 ], "opinion_index": 0, "case_paths": [ "/ill/378/0180-01" ] }, { "cite": "202 N.E.2d 494", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill.2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832497 ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0511-01" ] } ], "analysis": { "cardinality": 719, "char_count": 13697, "ocr_confidence": 0.737, "pagerank": { "raw": 7.298684065415758e-08, "percentile": 0.4340415213396611 }, "sha256": "23d5fe375f8ed2c005e67153ce2447925a9efa191bbf22dff34345a482365281", "simhash": "1:2366184b3f44471d", "word_count": 2311 }, "last_updated": "2023-07-14T18:04:13.341458+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Franklin H. Allison et al., Minors, by Franklin H. Allison, Their Father and Next Friend, Plaintiffs-Appellants, v. Charles M Howell, Defendant-Appellee\u2014(Charles M. Howell, Counter-plaintiff, v. Franklin H. Allison, Counterdefendant.)" ], "opinions": [ { "text": "PER CURIAM:\nThis was an action to recover damages incurred by the plaintiffs as a result of the alleged negligence of the defendant in operating his automobile. The defendant counterclaimed for damages. The jury rendered a verdict for defendant on plaintiffs\u2019 complaint and for plaintiffs on defendant\u2019s counterclaim. The court entered judgment on these verdicts. Appeal is taken from the jury\u2019s verdict on the plaintiffs\u2019 complaint and the judgment on that complaint. No questions are raised on the pleadings. The errors assigned concern the cross-examination of one of the witnesses and the closing argument of defense counsel.\nOn May 14, 1970 plaintiffs Franklin and Jane Allison and their children, Edward and Sheila, were traveling north on highway 51 south of Pana, Illinois. Defendant Charles Howell was traveling south on highway 51. At a point approximately one mile south of Pana and adjacent to the north entrance to the Hi-Way Tavern, which is located on the east side of the highway, a collision between these two automobiles occurred. Both vehicles involved in the collision were Buick four-door sedans. Plaintiff, Franklin Allison, was driving the Allison car; his wife, Jane, was in the front seat, the two children were in the rear seat. There were no passengers in the Howell car. Neither the defendant nor any of the plaintiffs remember details of the accident.\nDefendant Howell testified that the plaintiffs\u2019 car was in the southbound lane (.the defendant\u2019s lane) when it appeared on the ridge of the hill and that it was going about three times as fast as his own car or at a speed of approximately 55 miles per hour. He testified that he tried to avoid the oncoming car by veering onto the shoulder.\nJames R. LaGuartie, an eyewitness of the accident from his truck which was proceeding northward IV2 to 2 car- lengths ahead of plaintiff\u2019s car, testified that as he reached a point opposite the north entrance of the Hi-Way Tavern, defendant\u2019s car, after passing a truck in front of the witness, came into the witness\u2019 lane causing him to think that the defendant was going to hit the rear of his truck. He further testified that before the collision the plaintiff\u2019s car was completely in the northbound lane and that when he saw the Howell car last \u2014 just before the impact\u2014 it was headed southeast and was across the center line to the east. He also testified on cross-examination that he smelled liquor on defendant\u2019s breath after the collision.\nJames Weakly testified for the plaintiff that he was in the Hi-Way Tavern about 2 weeks after the' collision at which time the defendant came in and, in the course of the conversation about the accident, stated that he was crossing the center line to drive into the tavern when he saw the appellant\u2019s car coming from the opposite direction and that he was unable to pull back into his own lane.\nWitnesses for the defendant testified that he had not been drinking and that skid marks on the highway and the location of debris after the collision indicated that the collision occurred across the center line and on the defendant\u2019s side of the highway.\nPlaintiff maintains that tire evidence at the trial was in such sharp conflict that any substantial error or errors by defendant in the conduct of the trial had a significantly prejudicial effect on the jury in rendering its verdict for defendant, thus requiring reversal on appeal. Defendant concedes that the trial was not entirely free from error but argues that such errors were either minor and non-prejudicial or, even if prejudicial, not preserved by proper objection for appeal.\nPlaintiff contends that the following constitute reversible error:\n(1) During cross-examination of plaintiffs\u2019 witness, Weakly, defendant\u2019s counsel improperly asked if Weakly\u2019s business was bankrupt. Objection by plaintiffs\u2019 counsel was overruled. Weakly denied the bankruptcy.\n(2) Defendant\u2019s counsel in summation implied that failure to use seat belts went to the question of liability and contributory negligence, which is an incorrect statement of relevant law. Plaintiffs\u2019 objection was overruled, motion for a mistrial denied, and tire jury not instructed to disregard the statement.\n(3) In his summation defendant\u2019s counsel, referring to witness LaGuartie, stated that he had a natural apprehension of long-haired hippy-type people and stated further that LaGuartie kept his hand over his mouth when he testified and that most judges or lawyers know when a witness does that he has something to hide. Plaintiffs\u2019 objection was overruled.\nIn view of the sharp conflict in testimony on the facts, we believe that the errors complained of were substantial and that they were prejudicial to the appellant.\nTo support his contention that where a case is close on its facts and the jury might have decided either way, any substantial error which tips the scales in favor of the successful party calls for reversal, plaintiff cites a number of cases. Both v. Nelson, 31 Ill.2d 511, 202 N.E.2d 494, supports this view except that in Both the errors complained of concerned admission of evidence and the sufficiency of instructions. In Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, a case involving a collision between a truck and a van, two points were urged as error \u2014 namely that questions by plaintiff\u2019s counsel on voir dire related to insurance coverage; and that in an instruction on contributory negligence the statement that plaintiff could not recover if he had wrongly placed himself in a dangerous situation, was not included in an instruction on contributory negligence. The court reversed and stated: \u201c* * # the case was close on the facts and was one which the jury might have decided either way. In this situation it is important that the record be free from errors of law which may have affected the result.\u201d While the court did reverse for error in Chicago, Burlington & Quincy R.R. Co. v. Warner, 108 Ill. 538, and in Crane Co. v. Hogan, 228 Ill. 338, cases cited by the plaintiff, reversal in both cases was based on improper instructions to the jury. Reversal in Duffy v. Cortesi, 2 Ill.2d 511, was also based on erroneous instructions. However, in Owen v. Willett Truck Leasing Corp., 61 Ill.App.2d 395, and in Jacobson v. National Dairy Products Corp., 32 Ill.App.2d 37, reversible error consisted of counsel\u2019s conduct during the trial. In Owen, error consisted in the offering into evidence of exhibits known to be incompetent, the questioning of witnesses based on facts not in evidence, and in summation, the argument of facts not in evidence. In Jacobson the error consisted of counsel referring to a police court case in which the defendant had been exonerated, and in testifying and making improper comments in his summation. In Morse v. Michaelson, 101 Ill.App.2d 366, plaintiff sued for damage caused by the defendant\u2019s aUegedly negligent architectural designs. Plaintiff\u2019s counsel asked whether at the time this job was done defendant had gone into bankruptcy. The objection by defense counsel was sustained, but the court failed to admonish the jury to disregard the question. A verdict for the plaintiff was reversed on appeal and the court, quoting from Chicago, B & Q Ry. Co. v. Kelley (8th Cir. 1934), 74 F.2d 80, 86, observed that questions which give a jury improper prejudicial information need not constitute reversible error if the trial judge has sustained all timely objections and properly admonished the jury. The court noted no such admonition. In the instant case the prejudice was even greater because the objection by plaintiffs\u2019 counsel was not sustained, and the jury received no admonition though witness Weakly stated that there had been no bankrupty. Nothing was done to dispel the prejudicial effect of this line of questioning.\nAppellant cites as error remarks made by defense counsel in his summation:\n\u201cOne of the things which concerns me is the testimony about the glass in the face, a terrible thing to happen, and you will see that there was glass in the face of Mr. and Mrs. Allison. They hit the windshield, and this happens in the head-on colhsions many, many times, but you will recall the question, I beheve, and the answers were \u2018Were you wearing securely fastened seatbelts, or did you have them in the car?\u2019 and I believe the answer was \u2018yes, we had them in the car, but we weren\u2019t wearing them.\u2019 I think you have to decide whether they were in the exercise of due care and caution for their own safety.\u201d\nWhile defendant argues that this statement was made with respect only to mitigation of damages, it is obvious that the jury might not so understand it, and the settled rule in Illinois is that evidence of the use or nonuse of seatbelts is only admissible on the nature and extent of the injury sustained and not on the question of liability (Mount v. McClellan, 91 Ill.App.2d 1). Furthermore, this portion of counsel\u2019s summation misstated the evidence since neither of the plaintiffs, Mr. or Mrs. Allison, stated that they were not wearing their seatbelts. Mr. Allison stated that he did not believe that he and the passengers had seatbelts fastened, but he couldn\u2019t remember. Mrs. Allison testified that the car was equipped with seatbelts and that she did not recall whether they were wearing them. Plaintiffs\u2019 objection was not sustained, and their motion for the withdrawal of a juror was denied.\nDuring the course of defense counsel\u2019s argument, he said in regard to the testimony of James Weakly:\n\u201cI don\u2019t think there is anyone in this case who has particularly misrepresented the truth, but I just can\u2019t other than, I just can\u2019t go along with James Weakly\u2019s testimony and I just can\u2019t go along with LaGaurtie\u2019s. You say LaGuartie came out here, number 1, let\u2019s take Weakly first. Weakly gets down here and says, \u2018I come in ten days or two weeks later and I sit there on the stool at the tavern and Charlie Howell walks up and said, no, I said, \u201cCharlie, old boy, I didn\u2019t think I would ever see you again,\u201d and Charlie says, \u201cWell, I\u2019m lucky because it was my fault.\u201d He said, \u2018Well, he may not have used those words,\u2019 \u201cI pulled in front of a car and the car came over the hill going real fast, and I couldn\u2019t get back in time.\u201d Do you think the average person would admit that he violated the law? No, we just don\u2019t do things like that. That is human nature. I don\u2019t know if he is beholden to this law firm that has represented him in two or three cases or if that is why he came in or because he was mad at him because he was against me in two or three cases, but I just can\u2019t accept the word of Jim Weakly on most anything, and on this, I can\u2019t at all. LaGuartie, you say he came all the way out here from California. Of course I\u2019m 66 years old, I don\u2019t have any hair left anyway, I\u2019ve got somewhat natural apprehension to long haired Hippy type people, that doesn\u2019t embarrass him whether he is telling the truth or not \u2014 \u201d\nAt this point plaintiffs\u2019 counsel objected and moved for the withdrawal of a juror. His motion was denied. Speaking further of witness LaGuartie, defense counsel stated:\n\u201c* * * This LaGuartie, the fellow when he did all his testifying he kept his hand over his mouth. I don\u2019t know why that is, but most judges or lawyers know, or feel, that a witness * *\nAt this point plaintiffs\u2019 counsel objected and his objection was overruled. Defense counsel then proceeded and stated:\n\u201cIf a person has a hand over his mouth we think he has got something to hide. I know I have \u2014 as you know, I don\u2019t hear* too well, and I do a lot of good, I hope, on lip reading but you can\u2019t read a man\u2019s lips * *\nAgain plaintiffs\u2019 counsel objected and the court stated in response, \u201cReframe your argument. Your interpretation of the evidence and the comments as presented * *\nIn Bulleri v. Chicago Transit Authority, 41 Ill.App.2d 95, the appellate court found that the trial court had in effect converted counsel\u2019s misstatements into its own instructions by overruling objections and saying \u201cYou may proceed.\u201d The instant case is similar in that concededly improper remarks made by defendant\u2019s counsel, though not so numerous as in Bulleri, were objected to unsuccessfully by plaintiffs\u2019 counsel. While we agree with appellee, citing Johnson v. Chicago Transit Authority, 11 Ill.App.3d 16, that improper remarks by counsel are not grounds for reversal if the court took measures at the time to guard against any prejudicial effect, we find that in the instant case, with respect to the errors alleged, such measures were not taken and the court did not sustain objections or admonish the jury. Whether or not errors complained of actually prejudice the losing party or unduly affect the outcome of the case is a question unique in each case and must be decided on the facts and circumstances arising in that case. We do not feel that Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 118, and Gatto v. Curtis, 6 Ill.App.3d 714, supply any useful guidelines for the instant case. We believe that during the trial of this case there were errors substantially prejudicing the rights of plaintiffs to a fair trial.\nThe judgment is reversed and the cause remanded for a new trial.\nMr. JUSTICE EBERSPACHER took no part in the consideration or decision of this case.", "type": "majority", "author": "PER CURIAM:" } ], "attorneys": [ "Wayne E. Armstrong and Jon D. Robinson, of Hull, Armstrong. & Campbell, of Decatur, for appellants.", "John W. Fribley, of Fribley & Fribley, of Pana, for appellee." ], "corrections": "", "head_matter": "Franklin H. Allison et al., Minors, by Franklin H. Allison, Their Father and Next Friend, Plaintiffs-Appellants, v. Charles M Howell, Defendant-Appellee\u2014(Charles M. Howell, Counter-plaintiff, v. Franklin H. Allison, Counterdefendant.)\n(No. 73-9;\nFifth District\nSeptember 26, 1974.\nWayne E. Armstrong and Jon D. Robinson, of Hull, Armstrong. & Campbell, of Decatur, for appellants.\nJohn W. Fribley, of Fribley & Fribley, of Pana, for appellee." }, "file_name": "0287-01", "first_page_order": 309, "last_page_order": 314 }