{ "id": 3229815, "name": "JUDITH ROWLEY, Plaintiff-Appellant, v. JONNI R. ROUSSEAU, Defendant-Appellee.-(JAMES WALKER, Respondent-Appellant.)", "name_abbreviation": "Rowley v. Rousseau", "decision_date": "1980-02-11", "docket_number": "Nos. 15667, 15668 cons.", "first_page": "193", "last_page": "199", "citations": [ { "type": "official", "cite": "81 Ill. App. 3d 193" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "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 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "356 N.E.2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642545 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0719-01" ] }, { "cite": "177 N.E.2d 417", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "32 Ill. App. 2d 214", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5233420 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0214-01" ] }, { "cite": "263 N.E.2d 593", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "129 Ill. App. 2d 466", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2743260 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/129/0466-01" ] }, { "cite": "174 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "30 Ill. App. 2d 324", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5788210, 5789939 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0324-02", "/ill-app-2d/30/0324-01" ] } ], "analysis": { "cardinality": 619, "char_count": 13445, "ocr_confidence": 0.886, "pagerank": { "raw": 9.509434451059737e-08, "percentile": 0.5240386601689906 }, "sha256": "8153a531c6ade992508f5e6557d7db3e2753a4be832058e37db34f29e28ad05a", "simhash": "1:dabccaa53ece1df5", "word_count": 2224 }, "last_updated": "2023-07-14T21:35:10.623879+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUDITH ROWLEY, Plaintiff-Appellant, v. JONNI R. ROUSSEAU, Defendant-Appellee.\u2014(JAMES WALKER, Respondent-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE CRAVEN\ndelivered the opinion of the court:\nThe plaintiff is appealing from a jury verdict finding for the defendant and against the plaintiff in a personal injury case arising out of a two-car collision. At the plaintiff\u2019s trial, her counsel, James Walker, was found to be in direct contempt of court and was fined *350. Walker appeals the finding of contempt. The two appeals have been consolidated.\nIn addition to plaintiff\u2019s counsel\u2019s appeal of the trial court\u2019s order finding him in contempt, this appeal presents us with the following issues: (1) Whether the plaintiff was prejudiced by the trial court\u2019s ruling on the plaintiff\u2019s objections to the defendant\u2019s closing argument; (2) whether the trial court erred when it refused to direct a verdict for the plaintiff; (3) whether the trial court erred in denying plaintiff\u2019s motion for mistrial which was made because defense counsel elicited testimony that plaintiff had previously undergone psychiatric treatment; (4) whether the trial court erred when it only assessed plaintiff\u2019s costs against defendant (rather than enter a default judgment on plaintiff\u2019s behalf) for defendant\u2019s failure to comply with discovery.\nWe first consider the appeal from the contempt order.\nThe court\u2019s order on the defendant\u2019s pretrial motion in limine clearly precluded the parties from mentioning to the jury that the defendant was insured. Plaintiff\u2019s counsel during his closing argument stated, \u201cI suggest that someone has dropped a file in front of Mr. Wollrab and said look, go defend this case, \u201d * As a result of this comment, the judge reminded plaintiff\u2019s counsel outside of the presence of the jury of the motion in limine about insurance, and warned him that his argument was coming close to disobeying the motion in limine.\nDuring the defendant\u2019s closing argument, the following exchange took place:\n\u201cMR. WOLLRAB: \u2022 \u00b0 *\nSo, you\u2019ll be given another instruction that is going to tell you if that \u2014 if you find \u2014 the first vote you\u2019ll take, I assume, will be on the question of liability and if you find that Jonni, you\u2019re not going to place this lady\u2019s injuries on her \u2014 .\nMR. WALKER: Your Honor, I\u2019ll object. No one is placing the injuries on her. They are placing them on State Farm Mutual Automobile Insurance Company who is defending this case on her behalf.\nTHE COURT: Mr. Walker, you have deliberately attempted to interject in this case an error which the Court will deal with summarily at a subsequent time. The jury is to disregard this completely. This is an action between these two parties and let\u2019s have no further outbursts of that nature. The Court considers that to be direct contempt of this Court.\u201d\nLater, during defendant\u2019s closing argument, the following exchange occurred:\n\u201cMr. WOLLRAB: * \u00bb *\nSo, I think you\u2019ve got a question, really, as to whether or not this hospitalization was really necessary. It was put on really for the purpose of something that was broken and it wasn\u2019t broken, and then the other answer would be that it was put on to cover up pain and \u2014 should Jonni be held responsible for damages for money for pain that \u2014 .\nMR. WALKER: Your Honor, again, we object. We have not indicated that Jonni will be held responsible for any money damages in this case. The evidence is quite to the contrary.\nTHE COURT: This is not the state of the situation, Mr. Walker, and you\u2019re not entitled to proceed in that manner, and his argument is entirely proper.\u201d\nDuring the contempt hearing, the following exchange took place:\n\u201cTHE COURT: \u2022 0 0\nIs there any statement you wish to make about those matters?\nMR. WALKER: No, Your Honor.\nTHE COURT: All right, the Court is going to, as I indicated, find you in direct contempt of this Court and fine you in the sum of *350, and judgment entered thereon, and I might further say that I extremely regret the necessity that I see for having to do that. You\u2019re an extremely accomplished attorney, you have excellent abilities, you have \u2014 I believe that your zeal in pursuing your client\u2019s cause, irrespective of the law, has led you into this, and I do not find that there\u2019s any inexperience on your part whatsoever that would have placed you there. I believe, and the reason for that sentence is that I believe that you deliberately placed yourself in that position in an attempt to secure a mistrial of this case.\nThere was an earlier intimation of a possibility of that, and I regret that it is necessary.\u201d\nIrrespective of the nature of the defense counsel\u2019s closing argument here, it does not follow that the plaintiff\u2019s counsel had the right to disobey the trial court\u2019s ruling on the defendant\u2019s motion in limine. The fact that the plaintiff\u2019s counsel was previously warned about the motion in limine does not put his actions in a more favorable light. Not only were the plaintiff\u2019s counsel\u2019s statements violative of the trial court\u2019s ruling, but they also flagrantly ignored well-accepted case law. Accordingly, we affirm the trial court\u2019s order finding plaintiff\u2019s counsel in contempt of court.\nOur holding does not imply that we think that plaintiff\u2019s counsel should have ignored what he thought to be improper argument about the question of whether the defendant had insurance. However, plaintiffs counsel simply could have objected to the argument without disobeying the trial court\u2019s ruling on insurance. In short, there is just as an effective, and certainly more prudent, way of objecting to argument other than by disobeying the trial court\u2019s previous ruling and ignoring the law.\nWe turn now to the plaintiff\u2019s appeal.\nThe facts that gave rise to the plaintiff\u2019s counsel\u2019s appeal also raise two contentions by the plaintiff on appeal. The plaintiff contends that the trial court\u2019s rulings on the plaintiff\u2019s objections to the defendant\u2019s closing argument, as set out above, allowed improper argument by the defense counsel and compounded the impression given by the argument that the defendant was not insured \u2014 thereby prejudicing the defendant. Similarly, the plaintiff contends that it was error for the trial court to find plaintiff\u2019s counsel in contempt in front of the jury irrespective of whether the finding of contempt was correct.\nClearly, defendant does not have the right to inform the jury that she is not insured. (Wise v. Hayunga (1961), 30 Ill. App. 2d 324, 174 N.E.2d 399 (abstract).) Although the defense counsel\u2019s remarks do not explicitly state that the defendant is uninsured, they may imply it. Perhaps such is implied; at least plaintiff\u2019s counsel so concluded.\nIn order for there to have been a perfect trial in this case, neither party should have implied the existence or nonexistence of insurance. However, in this context and others, this trial was far from perfect. Indeed, both parties alluded to the insurance question, and the plaintiff\u2019s counsel flatly stated that the defendant was insured.\nAs stated in Wise, 30 Ill. App. 2d 324, 174 N.E.2d 399 (slip op. at 7), cited by the plaintiff:\n\u201c \u2018The general rule is that where the record shows a design or purpose on the part of counsel to improperly inform the jury that the defendant is insured or that an insurance company is defending the case and the circumstances tend to show a prejudicial effect upon the jury, the conduct constitutes error.\u2019 [Citation.] Here the design and purpose was to inform the jury that the defendant was not insured when in fact she was. Neither party should have such an advantage.\u201d\nThe record shows that it was the plaintiff\u2019s counsel that first alluded improperly to the insurance question by implying that an insurance company was defending the case. Moreover, the record demonstrates that if either counsel had a design or purpose to improperly bring up the question of insurance, it was the plaintiff\u2019s counsel. At most the prejudice was offsetting, and the jury was instructed: \u201cWhether a party is insured has no bearing whatever on any issue that you may decide. You must refrain from an inference, speculation or discussion about insurance.\u201d Finally, given the context of the complained-of judicial remarks, no reversible error was committed.\nNext the plaintiff contends that the trial court erred when it refused to direct a verdict for the plaintiff at the close of the evidence. In her motion, the plaintiff asked the trial court for an order finding as a matter of law: (1) The issue of liability for plaintiff and against defendant, and (2) in the alternative, the defendant was negligent as a matter of law.\nThe trial court was correct when it refused to grant the plaintiff\u2019s motion for judgment n.o.v. because there is ample evidence of the plaintiff\u2019s contributory negligence. The plaintiff cites Hale v. Cravens (1970), 129 Ill. App. 2d 466, 263 N.E.2d 593, for her argument that the fact that the plaintiff may have been exceeding the posted speed limit or driving too fast for conditions could not be the basis for contributory negligence. This contention is not tenable. Conner v. McGrew (1961), 32 Ill. App. 2d 214, 177 N.E.2d 417; also see Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 356 N.E.2d 445.\nHale does not stand for the proposition cited. The basis for the decision in that case was the fact that the defendant drove her automobile direcdy into the path of plaintiff\u2019s vehicle under circumstances that afforded the plaintiff no opportunity to avoid the collision. Any claim by the plaintiff that the evidence establishes that the plaintiff had no opportunity to avoid the collision in this case simply is not supported by the testimony at trial.\nIf the question of plaintiff\u2019s contributory negligence was a legitimate question for the jury, the plaintiff alternatively argues that \u201cunder the evidence of this case the jury should not have had before them the issues of whether or not the defendant was negligent.\u201d\nPlaintiff cites no authority for the proposition that the trial court could direct a partial verdict on the defendant\u2019s negligence while at the same time instructing the jury on damages and contributory negligence. Irrespective of this fact, all the evidence, when viewed in the light most favorable to the plaintiff, does not establish the defendant\u2019s negligence to the degree that would have allowed the trial court to take the issue from the jury. See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.\nThe plaintiff contends that the trial court erred in denying her motion for mistrial which was made because defense counsel elicited testimony that the plaintiff had previously undergone psychiatric treatment. The plaintiff did not object during the defense counsel\u2019s line of questioning that brought out the plaintiff\u2019s psychiatric treatment. After the questioning was finished, the plaintiff moved for a mistrial during which the following exchange took place:\n\u201cTHE COURT: Why did you decide not to object?\nMR. WALKER: Your motion to change places with me is denied, Judge, I\u2019m trying the case.\nTHE COURT: I think that answers the question.\nMR. WALKER: A fair and just trial to this case, I have no duty to come in and object when this man gets in here and brings in this improper \u2014 .\nTHE COURT: Well, the Court noted that you started to object, sir, to the matter that was being presented, and you decided not to prevent \u2014 you had an opportunity to prevent that from being \u2014 .\nMR. WALKER: All I ask for is a fair trial.\nIf you want to grant the motion for mistrial, you have that power. If you don\u2019t, deny it.\nTHE COURT: Mr. Walker, let me finish if you will, sir.\nNow, you had an opportunity, the Court knows nothing about the context of this evidence, you have taken depositions, you\u2019ve had the discovery, you know your client\u2019s medical history. You started to object, held off objecting, and then after it\u2019s in, you approach the bench and ask for a mistrial when you haven\u2019t tried to protect the record.\nThe motion is denied.\u201d\nWe agree with the trial court, and hold that this issue has been waived because of counsel\u2019s failure to interject an objection to the testimony he thought was improper.\nThe defendant failed to produce photographs of the accident as requested by the plaintiff. The trial court assessed plaintiffs costs against defendant as a sanction for the defendant\u2019s failure to comply with this discovery request. The plaintiff contends that this sanction is not severe enough. Rather, the plaintiff thinks the appropriate sanction for the defendant\u2019s failure to comply with discovery would have been the entry of a default judgment on the plaintiff\u2019s behalf.\nThe plaintiff is asking us to hold that the trial court abused its discretion because it failed to enter a default judgment on her behalf as the appropriate sanction. However, the plaintiff did not argue, nor does the record indicate, any evidence of prejudice as a result of the defendant\u2019s failure to comply with discovery. Moreover, the record indicates that the defendant\u2019s failure to comply was unintentional. Therefore, we hold that the sanctions the trial court imposed were well within its limits of discretion.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMILLS, P. J., and WEBBER, J., concur.", "type": "majority", "author": "Mr. JUSTICE CRAVEN" } ], "attorneys": [ "James Walker, Ltd., of Bloomington, for appellants.", "Costigan & Wollrab, of Bloomington, for appellee." ], "corrections": "", "head_matter": "JUDITH ROWLEY, Plaintiff-Appellant, v. JONNI R. ROUSSEAU, Defendant-Appellee.\u2014(JAMES WALKER, Respondent-Appellant.)\nFourth District\nNos. 15667, 15668 cons.\nOpinion filed February 11, 1980.\nJames Walker, Ltd., of Bloomington, for appellants.\nCostigan & Wollrab, of Bloomington, for appellee." }, "file_name": "0193-01", "first_page_order": 215, "last_page_order": 221 }