{
  "id": 3370979,
  "name": "DOLLY HARRISON, Special Adm'rx of the Estate of Synobia Robinson, Deceased, Plaintiff-Petitioner, v. THE CHICAGO TRANSIT AUTHORITY et al., Defendants-Respondents",
  "name_abbreviation": "Harrison v. Chicago Transit Authority",
  "decision_date": "1977-04-28",
  "docket_number": "No. 61863",
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  "last_updated": "2023-07-14T15:43:36.955471+00:00",
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    "judges": [],
    "parties": [
      "DOLLY HARRISON, Special Adm\u2019rx of the Estate of Synobia Robinson, Deceased, Plaintiff-Petitioner, v. THE CHICAGO TRANSIT AUTHORITY et al., Defendants-Respondents."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE DIERINGER\ndelivered the opinion of the court:\nThis appeal is from an order of the circuit court of Cook County in a personal injury action, granting the Chicago Transit Authority (C.T.A.) a new trial after a jury verdict for *31,000 was returned in favor of the plaintiff, Dolly Harrison. Pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1975, ch. 110A, par. 306), the petition of Dolly Harrison for leave to appeal the order granting a new trial was heretofore allowed by this court.\nThe issues presented for review are whether the claimed prejudice, for which a new trial was ordered, was waived and whether the trial judge abused his discretion in ordering a new trial. The pertinent facts follow.\nDuring the personal injury trial in the court below, and while cross-examining a doctor, defense counsel held in his hand certain notes of a treating nurse. Plaintiff\u2019s attorney objected to what looked like a question being read from the notes, by saying:\n\u201cYour Honor, I would object in that he is reading and he has inferred it is in the nurse\u2019s notes. The doctor\u2019s own history indicated and we do not deny that the mass did come two or three weeks before, but I would object to Mr. Stanton\u2019s lying, of trying to examine this man by putting in questions of that nature.\nMr. Stanton: Your Honor, is the Court going to permit counsel to make that type of statement in front of the jury, using \u2018lying\u2019?\nMr. Pendergast: I said \u2018line,\u2019 1-i-n-e, your Honor.\n# # #\nThe Court: The Judge is duty-bound to protect all the lawyers in his courtroom and the jurors and all the officers of the Court. I will strike that. It is not to be repeated.\u201d\nLater, during closing arguments, plaintiff\u2019s counsel again inferred that defendant\u2019s attorney was a liar, by saying:\n\u201cI think that we live in a time where the very nature of my profession is in dispute as to the conduct of lawyers and attorneys.\nI do not think that personality should interfere in a trial. I know of no name calling of anyone in front of the jury. Now, I remember taking exception to that, ladies and gentlemen of the jury, that statement that indicated Mr. Stanton was a liar, in front of the jury.\nNow, whether or not I think that he is a liar, is something that you people would not know.\nMr. Stanton: Object to this line of argument.\nThe Court: Sustained.\n\u25a0 Mr. Stanton: I move that it be stricken from the jury and the jury be instructed to disregard it.\nThe Court: I will strike it. Disregard that.\u201d\nThe plaintiff contends at the time of each of the alleged prejudicial statements the defendant made no motion for a mistrial. Therefore, any claimed prejudice was waived and could not be raised in the form of a post-trial motion after a verdict has been entered, as this would give the defendant two verdicts or, as plaintiff\u2019s brief points out, constitutes \u201ctwo bites at the apple.\u201d\nPlaintiff relies on Bauer v. Timucci (1975), 33 Ill. App. 3d 1051, 339 N.E.2d 434, to support her position. However, Bauer is inapplicable because the prejudicial conduct alleged in Bauer was not immediately objected to, nor was a motion for a mistrial entered, whereas in the case at bar objections were immediately entered and arguments were postponed by the trial judge.\nThe Illinois Supreme Court recognized a simple objection is enough to preserve the issue of misconduct for consideration on a post-trial motion.\nIn Appel v. Chicago City Ry. Co. (1913), 259 Ill. 561, 567, 102 N.E. 1021, the court stated:\n\u201cThe improper argument or other misconduct complained of must be brought to the attention of the court and a ruling of the court either made or refused before the question can arise in an appellate tribunal. Where objections made to improper argument are sustained, counsel is corrected and the jury are instructed to disregard it, the improper argument cannot usually be made the basis of reversal. But upon a motion for a new trial the question still remains whether the defeated party, in view of the whole record, has had a fair trial, and this question is committed to the discretion of the trial court \u00b0 See also Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249.\nDefense counsel entered timely objections to the remarks at trial and specifically set forth the errors in his post-trial motion. The issue of whether the defendant was denied a fair trial was properly preserved.\nThe question now remains whether the trial judge abused his discretion in ordering a new trial.\nPlaintiff contends the trial judge abused his discretion since the alleged accusation upon which he based his decision was never made and was always denied.\nGenerally, the allowance or refusal of a motion for a new trial is within the discretion of the trial judge because in passing on the motion he has the benefit of his previous observation of the participants, their manner of speaking, and of the circumstances aiding in the determination of credibility. This deference given a trial judge by courts of review is nowhere more justified than when applied to a question of prejudicial conduct of counsel before a jury. The trial judge is in a much better position to determine the prejudicial effect of counsel\u2019s conduct.\nThe difficulty and subtlety of the question of prejudicing a jury by improper conduct of attorneys has been commented upon in Crutchfield v. Meyer (1953), 414 Ill. 210, 214, 111 N.E.2d 142, where the court said:\n\u201cThe heat and partisanship engendered in a lawsuit are both understood and recognized by this court, but, while allowing certain latitude to attorneys in the sincere representation of their clients, we cannot approve practices which clearly appear to bring improper matters to the attention of the jury for prejudicial purposes thereby obtaining unfair advantages.\u201d\nThe record reflects the granting of a new trial was based on a finding that unsubstantiated accusations were made by plaintiff\u2019s counsel, of dishonorable conduct on the part of opposing counsel, which caused prejudice in the jury toward the defendant and denied the defendant a fair trial. After a careful examination of the entire record, we are of the opinion the trial judge properly exercised his discretion in granting defendant a new trial.\nFor the foregoing reasons the judgment of the circuit court of Cook County is hereby affirmed.\nAffirmed.\nLINN and ROMITI, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE DIERINGER"
      }
    ],
    "attorneys": [
      "Fishman and Fishman, of Chicago, for petitioner.",
      "Edward J. Egan, John J. O\u2019 Toole, and J. Richard Stanton, all of Chicago, for respondents."
    ],
    "corrections": "",
    "head_matter": "DOLLY HARRISON, Special Adm\u2019rx of the Estate of Synobia Robinson, Deceased, Plaintiff-Petitioner, v. THE CHICAGO TRANSIT AUTHORITY et al., Defendants-Respondents.\nFirst District (4th Division)\nNo. 61863\nOpinion filed April 28, 1977.\nRehearing denied May 26, 1977.\nFishman and Fishman, of Chicago, for petitioner.\nEdward J. Egan, John J. O\u2019 Toole, and J. Richard Stanton, all of Chicago, for respondents."
  },
  "file_name": "0564-01",
  "first_page_order": 598,
  "last_page_order": 601
}