{
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  "name": "LESTER CLAMAGE, Plaintiff-Appellee, v. DONALD SHAPIRO, Defendant-Appellant",
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    "parties": [
      "LESTER CLAMAGE, Plaintiff-Appellee, v. DONALD SHAPIRO, Defendant-Appellant."
    ],
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      {
        "text": "Mr. JUSTICE BUA\ndelivered the opinion of the court:\nThis is an appeal by defendant Donald Shapiro from a judgment entered in the Circuit Court of Cook County on a jury\u2019s verdict of *20,000 in favor of the plaintiff, Lester Clamage. Defendant presents three issues for review: (1) whether a certain statement by the court in the presence of the jury on a contested material issue of fact was prejudicial error; (2) whether the impeachment of defendant by plaintiff\u2019s counsel on the issue of due care and counsel\u2019s comment in closing argument on defendant\u2019s veracity were prejudicial errors; and (3) whether plaintiff s counsel sought to imply the existence of insurance during closing argument to the jury. The relevant facts follow.\nOn April 17, 1972, while crossing Lawndale Avenue in the Village of Skokie, plaintiff was struck in the right leg by an automobile operated by the defendant. At the time of the accident the defendant was backing up in order to pull out of a parking space. As a result of being struck plaintiff suffered injuries to his right foot and hip which required surgery. Thereafter, plaintiff was required to wear specially designed shoes which compensated for swelling. In addition, plaintiff\u2019s big toe had curled under his other toes, causing him to limp.\nSubsequently, plaintiff filed a personal injury action against the defendant in the Circuit Court of Cook County, and the case was tried before a jury. While the plaintiff was testifying on direct examination, the following colloquy occurred:\n\u201cMr. Cooney [plaintiff\u2019s attorney]: Following the accident, before the accident, did you have a limp.\nA: No, sir.\nQ: Did you have that problem with your toe curling under the big toe before the accident?\nA: No, sir.\nQ: Do you still have that problem?\nA: Yes, sir.\nQ: Do you have a limp now?\nMr. Mavrias [defense counsel]: Objection, your Honor. That is the same area. He has answered no physical difficulties. Counsel didn\u2019t like the answer and he is asking\u2014\nMr. Cooney: I like the answer, but the man doesn\u2019t complain. We have to drag it out of him.\nMr. Mavrias: He has answered it three or four times.\nMr. Cooney: Let him answer again in fairness to him. It is his case.\nThe Court: Proceed. The jury already knows he has a limp anyways, Mr. Cooney.\nMr. Cooney: Well, that\u2019s what I mean. You limp a little, do you?\nThe witness: Yes, sir.\u201d\nThereupon, defense counsel, in camera, moved for a mistrial based on the court\u2019s comment, in front of the jury, that the plaintiff has a limp. The court denied the motion and the trial proceeded. Various witnesses were called and eventually the defendant testified. He stated on direct examination that he backed his car up with his foot on the brake. Mr. Cooney then cross-examined defendant in relevant part as follows:\n\u201cQ: When you got into your car, you saw Mr. damage getting out of his car, is that right?\nA: When I \u2014 pardon?\nQ. When you got into your car, you saw Mr. damage getting out of his car.\nA: When I got into \u2014 no.\nQ: Isn\u2019t that what you said on your deposition?\nMr. Mavrias: Objection, Judge, that is not the proper way to ask him. He should read the question and read the answer.\nThe Witness: I saw Mr. damage once.\nMr. Mavrias: Mr. Shapiro, just a minute, Judge, that is not the proper form.\nThe Court: All right.\nMr. Cooney: Well, I will ask you: Did you see him getting out of his car as you got into your car?\nA: I saw him out of the car, but I don\u2019t remember what terms, if it was when I got in or when I got out.\nQ: Well, did you answer these questions under oath? I am on page 17.\n\u2018Was he in or out of the car?\nI think, if my recollection is correct, he was just getting out.\nAnd where were you in reference to your car, at that point,\nwhen he was just getting out?\nI was just getting into mine.\u2019\nIsn\u2019t that what you said?\nA: That could very well be.\nQ: But, didn\u2019t you say that?\nA: It could very well be. I\u2019m not trying to argue with you. Take a look at it.\nMr. Mavrias: He has answered he is not disputing that. He said that.\nMr. Cooney: Well, then, that is the fact, is that right?\nA: I saw him once and that evidently was the time I saw him.\nQ: All right. Now, for the first time you are telling somebody that you had your foot on the brake when you backed up.\nNow, you tell us where that is shown in here.\nMr. Mavrias: That is improper.\nMr. Cooney: Show us where your foot was on the brake, sir.\nA: I was never asked the questions, sir. If I was asked the question, I\u2019d answer.\nMr. Mavrias: That is an improper thing and counsel knows it. I move for a mistrial.\nThe Court: All right. Your motion is denied. Proceed. * * *\nMr. Cooney: Well, you cannot categorize the manner in which you went back into this man, can you?\nA. What do you mean I can\u2019t?\nQ: As far as speeding.\nA: Oh, yes, I can.\nQ: Well, you were asked that question, and you couldn\u2019t categorize it under oath before.\nMr.. Mavrias: Judge, the same objection. That is not the proper way to do it.\nThe Court: The objection is sustained.\nMr. Cooney: Let me ask you this question, sir, I am not trying to quarrel with you. I would just like you to be consistent. I am on page 23.\n\u2018Now, what was \u2014 can you categorize or describe for me\nhow you backed up your car?\nNo.\nAll right.\nI have no idea.\u2019 \u2022\nIsn\u2019t that what you told us under oath a couple of months ago?\nA: But, if I was asked the question if I had my foot on the brake\u2014\nQ: You read the question.\nA: My foot was always on the brake. I don\u2019t care what the questions says, I know what I did.\nMr. Mavrias: Objection.\nThe Court: You are objecting, and your objection is sustained.\nMr. Cooney: I am asking you to categorize the speed.\nA: I don\u2019t care what that says.\nQ: All right. If you don\u2019t care what it says under oath, I don\u2019t care.\nA: When I back up a car, and I don\u2019t know who don\u2019t\u2014\nThe Court: All right. There is no question pending. And if you are making an objection, it is sustained.\nMr. Cooney: In rebuttal, I would like to read into the transcript what the questions were under oath and the date and circumstances.\nMr. Mavrias: I am objecting to this procedure. I don\u2019t think it is proper.\nThe Court: All right. Your objection is sustained.\u201d\nSubsequently, during closing argument to the jury, Mr. Cooney stated:\n\u201cI will tell you another thing in all honesty. I am bias in this case, and I am prejudice, because I like my client and I have been with him and I think he is right.\u201d\nContinuing his argument, Mr. Cooney remarked:\n\u201cI called the defendant, Mr. Shapiro \u2014 and I have no gripes with him, and it is impersonal as far as I am concerned. This is a lawsuit, and there is a claim for damages. And there is nothing personal about it.\u201d\nDefense counsel, Mr. Mavrias, commented during his argument:\n\u201cNow as Mr. Cooney indicated, he has some bias in this case. I don\u2019t think my client is at fault. Mr. Shapiro has bias in the case. And Mr. Clamage certainly has bias in the case. They each have something to gain or lose in this manner.\u201d\nThese comments drew the following response:\n\u201cMr. Cooney: Objection to that comment. I move that the jury be instructed to disregard that someone has something to lose in this case.\nThe Court: Sustained.\nMr. Mavrias: Objection, your Honor.\nThe Court: All right. Proceed.\u201d\nOn rebuttal Mr. Cooney argued:\n\u201c<s \u00ab o yOU are here j-0 render a verdict in this case that will be fair and square. Now, we are not trying to take anything from someone. And don\u2019t be misled by that. There is nothing personal about this at all.\u201d\nCounsel continued argument, commenting on the evidence concerning plaintiff\u2019s accident and said:\n\u201cAnd does it make any difference whether he broke his hip by getting hit with the bumper or when he was trying to pull himself away and fell on the pavement? Don\u2019t be confused on that nonsense. And I am not being critical. Because, counsel has a job, and he is sent over here by his firm to hold down this verdict. And he does an excellent job. So don\u2019t be confused.\u201d\nAnd, finally, the record reflects the following remarks of Mr. Cooney to the jury:\n\u201cAnd I can say this: If you say as the voice and conscience of this community, that a man can get in a car and not keep a proper lookout and back up whether fast or slow and pin someone and hurt him to this extent, if you say he has done nothing wrong, well then I don\u2019t like this community.\nI don\u2019t think you are going to say that. Because, you know he was slightly careless in causing this man\u2019s injury, and it wasn\u2019t on purpose. And it is nothing personal. And that is what I think you are going to say.\u201d\nThereafter, the jury received their instructions from the court and began deliberations. Judgment was entered on the verdict and defendant appealed, as hereinbefore setforth.\nDefendant initially ascribed error to the trial court\u2019s comment in the presence of the jury that, \u201cThe jury already knows he has a limp anyways * * As hereinbefore mentioned this comment was made in response to defense counsel\u2019s objection to certain questions asked plaintiff on direct examination. Defendant contends that this was an improper comment on a contested material issue of fact. We disagree.\nPlaintiff had stated for the record that he now limps. Another witness, a fellow employee of the plaintiff, had previously testified that plaintiff now walked with a limp. In addition, the trial judge, in denying defendant\u2019s motion for a mistrial, noted that the jury had observed the plaintiff walking around the courtroom on several occasions prior to the court\u2019s remark. Quoting the court: \u201cThe jury would have to be absolutely the most unobservant group of people I have ever known not to notice that this man was limping pronouncedly as he walked back and forth in front of them and as he walked into the stand.\u201d\nWe have examined the complained of remarks in their proper context and find them to be nonprejudicial in light of the fact that the jury had, prior to the court\u2019s remarks, heard testimony concerning plaintiff\u2019s limp and had occasion to observe the plaintiff as he walked around the courtroom. Wide latitude must be allowed the trial judge in conducting a trial. It is only where his conduct or remarks are of such a nature as would ordinarily create prejudice in the minds of the jurors that they constitute reversible error. (Piechalak v. Liberty Trucking Co. (1965), 58 Ill. App. 2d 289, 208 N.E.2d 379; Reske v. Klein (1961), 33 Ill. App. 2d 302, 179 N.E.2d 415; Taylor v. The Carborundum Co. (1969), 107 Ill. App. 2d 12, 246 N.E.2d 898.) Here the trial court\u2019s remarks were not of such a nature as to create prejudice in the juror\u2019s minds.\nDefendant\u2019s next contention is that his impeachment by plaintiff\u2019s counsel on the issue of due care was improper and counsel\u2019s comments thereon during closing argument constituted reversible error. Defendant contends that plaintiff\u2019s counsel failed to present any evidence inconsistent with defendant\u2019s testimony at trial that he applied the brakes while backing up. We do not agree.\nThe rule in Illinois regarding impeachment by a prior inconsistent statement is that, once counsel has laid a foundation for impeachment, he is required to offer proof of the allegedly impeaching statement. (Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491; Schoolfield v. Witkowski (1964), 54 Ill. App. 2d 111, 203 bn.E.2d 460.) The only exception to the aforestated rule occurs when the witness admits that he made the prior statement. (Logue v. Williams (1969), 111 Ill. App. 2d 327, 250 N.E.2d 159.) In the case at bar, the defendant stated on direct examination that he had his foot on the brake when he was backing up. Plaintiff\u2019s counsel, noting that this was the first time defendant said he had his foot on the brake, questioned defendant as to a prior statement at his deposition. There the defendant was asked if he could categorize or describe how he backed up his car and he answered, \u201cNo.\u201d The defendant then testified that he had never been asked at his deposition if he had his foot on the brake, though he said that if he were asked the question he would have answered it. This comment by the defendant was clearly a reference to his earlier deposition, and an admission that said deposition had in fact taken place. We hold this line of questions by plaintiff\u2019s counsel, when viewed together with defendant\u2019s answers and admissions, (as set forth more fully in the recitation of the facts) was sufficient compliance with the Illinois rules as stated in Rigor and Logue.\nMoreover, when construing the record as a whole, especially in light of the witness\u2019s rehabilitative testimony subsequent to counsel\u2019s reference to defendant\u2019s deposition, any error that may be reflected therein was harmless error, since the statements do no harm to the credibility of the witness. Kelly v. Reynolds (1971), 132 Ill. App. 2d 1098, 271 N.E.2d 370.\nThe record discloses that the defendant stated that he had his foot on the brake when he backed into the plaintiff, that he did not testify to this on his earlier deposition where he was asked to describe the manner in which he backed up, and that he did not care what his earlier deposition said, because at trial he knew what happened on the day of the accident.\nOn closing argument, the attorney for the plaintiff commented:\n\u201cJust a little while ago for the first time we heard that he [the defendant] had his foot on the brake and not the accelerator. Do you want to know what kind of car he was driving? On most of mine though, you move them when you put your foot on the accelerator. He also said he didn\u2019t care what he said under oath a few months ago. He doesn\u2019t think that was important. I think it is important. At any rate, that is what his testimony was in the case. # # #\nHe told us a little while \u2014 he said something under oath \u2014 that he could not categorize the manner and speed in which he came back. He said he didn\u2019t care what he said under oath before.\u201d\nWith respect to closing arguments:\n\u201cCounsel cannot state matters not in evidence, but can urge all reasonable inferences and conclusions which may be properly drawn from the evidence and wide latitude should be allowed.\u201d Maguire v. Waukegan Park District (1972), 4 Ill. App. 3d 800, 805, 282 N.E.2d 6, 9-10.\nWe are of the opinion that it was permissible for plaintiff s counsel to state his conclusions as to defendant\u2019s statement that he did not care what he had said under oath a few months ago. Such a holding we believe is in consonance with the rule that wide latitude should be afforded counsel in urging reasonable inferences and conclusions during closing argument. See Kallas v. Lee (1974), 22 Ill. App. 3d 496, 503, 317 N.E.2d 704, 709-10.\nDefendant\u2019s final contention is that plaintiff\u2019s counsel sought to imply the existence of insurance during closing argument to the jury. Plaintiff\u2019s counsel stated during closing argument (as hereinbefore set forth in its entirety) that,\n\u201cI called the defendant, Mr. Shapiro \u2014 I have no gripes with him, and it is impersonal as far as I am concerned. This is a lawsuit e # 6 And there is nothing personal about it.\u201d\nIt is axiomatic that in a personal injury action it is error to admit evidence of insurance protection. (Guardado v. Navarro (1964), 47 Ill. App. 2d 92, 197 N.E.2d 469.) However, the instant case is distinguishable from the leading cases cited by defendant in support of his position. (Reed v. Johnson (1965), 55 Ill. App. 2d 67, 204 N.E.2d 136, and Ferrer v. Vecchione (1968), 98 Ill. App. 2d 467, 240 N.E.2d 439.) In Reed, the court, at page 76, held counsel\u2019s remarks that \u201cthere is nothing personal about this * * * we are not going to have any personal concern, and the Johnson Bros, don\u2019t. There is nothing personal\u201d clearly and deliberately implied the existence of insurance. In Reed, unlike the case at bar, counsel\u2019s remarks were made in reference to the amount of the verdict. In Ferrer, counsel argued that the defendant\u2019s absence at the trial indicated his lack of concern in the outcome of the case. The court, in Ferrer, reasoned that such argument carried with it a strong implication of insurance. In the instant case, counsels comments, when read in context, were clearly intended to negate any implication, in the minds of the jury, of a personal animosity existing between himself and the defendant.\nMoreover, counsel\u2019s later comment that defense counsel was sent over by his firm to hold down the verdict was proper argument.\nCounsel was merely rebutting the defense attorney\u2019s closing reference as to what damages should properly be assessed if the jury found his client liable. We hold that these comments did not constitute an improper insinuation that defendant had insurance. (See Browning v. Johnson (1971), 132 Ill. App. 2d 85, 267 N.E.2d 730.) At worst, plaintiffs counsel\u2019s remarks were uncertain or equivocal. Where remarks are equivocal and made only in response to argument by defense counsel no reversible error results. Cupp v. Nelson (1972), 5 Ill. App. 3d 37, 282 N.E.2d 513.\nFor the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.\nAffirmed.\nMcGLOON and O\u2019CONNOR, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE BUA"
      }
    ],
    "attorneys": [
      "Jerome H. Torshen, Ltd., and Stern & Rotheiser, both of Chicago (Jerome H. Torshen and Edward G. Wierzbicki, of counsel, for appellant.",
      "Cooney & Stenn, of Chicago (Robert J. Cooney, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "LESTER CLAMAGE, Plaintiff-Appellee, v. DONALD SHAPIRO, Defendant-Appellant.\nFirst District (1st Division)\nNo. 63026\nOpinion filed April 11, 1977.\nJerome H. Torshen, Ltd., and Stern & Rotheiser, both of Chicago (Jerome H. Torshen and Edward G. Wierzbicki, of counsel, for appellant.\nCooney & Stenn, of Chicago (Robert J. Cooney, of counsel), for appellee."
  },
  "file_name": "0090-01",
  "first_page_order": 124,
  "last_page_order": 132
}