{ "id": 5103288, "name": "June Simpson, Appellee, v. William Marks, Appellant", "name_abbreviation": "Simpson v. Marks", "decision_date": "1953-03-18", "docket_number": "Gen. No. 45,802", "first_page": "527", "last_page": "533", "citations": [ { "type": "official", "cite": "349 Ill. App. 527" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "397 Ill. 438", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2463160 ], "opinion_index": 0, "case_paths": [ "/ill/397/0438-01" ] }, { "cite": "155 Ill. App. 434", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5317658 ], "opinion_index": 0, "case_paths": [ "/ill-app/155/0434-01" ] }, { "cite": "264 Ill. App. 473", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3295617 ], "opinion_index": 0, "case_paths": [ "/ill-app/264/0473-01" ] }, { "cite": "294 Ill. App. 138", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3237634 ], "opinion_index": 0, "case_paths": [ "/ill-app/294/0138-01" ] }, { "cite": "357 Ill. 82", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5282760 ], "opinion_index": 0, "case_paths": [ "/ill/357/0082-01" ] }, { "cite": "394 Ill. 600", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472044 ], "opinion_index": 0, "case_paths": [ "/ill/394/0600-01" ] }, { "cite": "398 Ill. 496", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460001 ], "opinion_index": 0, "case_paths": [ "/ill/398/0496-01" ] } ], "analysis": { "cardinality": 546, "char_count": 8925, "ocr_confidence": 0.523, "pagerank": { "raw": 6.5754854646575e-08, "percentile": 0.402706875960722 }, "sha256": "b2252e61f6a7960b5a93f39b7d6be02febdf414ad96def10ae6973576f19fdd4", "simhash": "1:10aa5ee4221f80dc", "word_count": 1498 }, "last_updated": "2023-07-14T17:47:31.737390+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "June Simpson, Appellee, v. William Marks, Appellant." ], "opinions": [ { "text": "Mr. Justice Kiley\ndelivered the opinion of the court.\nThis is a personal injury action against an automobile owner by his guest. The verdict and judgment were for plaintiff in the amount of $12,500. Defendant has appealed.\nThe accident occurred about 3 a. m., August 15,1947 near 29th Street on the Outer Drive in Chicago. Defendant was driving south with plaintiff at his side. The automobile collided with a lamp post and plaintiff was injured.\nThe questions on appeal are: whether there was prejudicial error committed at the trial in refusing to grant a new trial for improper examination of a juror, in permitting improper cross-examination and in instructing the jury; and whether the verdict is against the manifest weight of the evidence or excessive.\nPlaintiff had the burden of proving that defendant was guilty of wilful and wanton misconduct causing her injury. (Chap. 95%, par. 58a, Ill. Rev. Stat. [1951; Jones Ill. Stats. Ann. 85.064(1)]). She alleged defendant\u2019s duty not to wilfully and wantonly injure her and the violation of that duty in several ways. At the trial, plaintiff\u2019s theory of proof was that defendant, just before the accident, took both hands off the wheel to embrace her, and the automobile out of control ran onto the parkway and into the lamp post. The theory of defense was that there had been an accident on the northbound channel of the Outer Drive and as defendant drove south he was distracted by the warning flares and while he was looking east at the accident his automobile went onto the parkway and into the post.\nIn this court the defendant argues that the only testimony supporting plaintiff\u2019s trial theory should have been rejected by the court and jury as inherently improbable. Plaintiff\u2019s brief answers that under either her theory or defendant\u2019s theory defendant was guilty as a matter of law. Defendant cannot claim surprise at plaintiff\u2019s reliance on defendant\u2019s theory since he introduced it and the complaint was general enough to accommodate either theory. We think that if the record sustains the verdict and judgment on either theory the judgment should be affirmed.\nDefendant contends that because plaintiff\u2019s testimony is unworthy of belief a verdict based on that testimony can be explained only by the passion engendered in the jury by improprieties at the trial. These improprieties, argues defendant, were the suggestions to the jury of insurance coverage and plaintiff\u2019s attorney dwelling on inflammatory irrelevant matter in examining defendant.\nDefendant cites the following cases in support of his contention that plaintiff\u2019s story of the accident is inherently improbable. Tepper v. Campo, 398 Ill. 496; Schueler v. Blomstrand, 394 Ill. 600; People v. Bentley, 357 Ill. 82; Seybold v. Zimmerman, 294 Ill. App. 138; Clements v. Western Fire Ins. Co., 264 Ill. App. 473 and Brown v. Chicago City Ry. Co., 155 Ill. App. 434. The courts in these cases stated the rule that uncontradicted testimony should be rejected where it is physically impossible, inherently improbable, or contrary to the common experience of mankind. The cases, however, on the facts, are so plainly distinguishable that we think it would serve no useful purpose to discuss them. In Seybold v. Zimmerman, the court refused to apply the rule in defendant\u2019s favor.\nIt was not physically impossible for defendant to take his hands off the wheel to embrace plaintiff. We think it is not against the common experience of mankind, nor inherently improbable, for an ardent lover to do what plaintiff said the defendant did in this case. Impassioned men have been guilty of far more reckless conduct than that attributed to defendant.\nIn examining a prospective juror, plaintiff\u2019s attorney was told by the prospective juror that she worked for an advertising firm. He asked whether \u201cthey\u201d had anything to do with law business where people are engaged in \u201cthis type of work.\u201d She answered, \u201cno.\u201d She was asked whether she worked in a law office. She answered, \u201cno.\u201d Then, \u201cHave you ever been engaged by any employer that had anything to do with either the street car company, railroad companies or insurance companies, having anything to do with these type of cases?\u201d She answered, \u201cno.\u201d\nWe infer from the record that defendant made a motion for a mistrial in chambers during the voir dire. The motion was denied. He contends that the question was artful, planted the seed of prejudice by informing the jury that defendant was insured against liability and explains the excessive verdict. The question asked was not as direct as the one in Wheeler v. Rudek, 397 Ill. 438. It was objectionable because neither streetcar companies, railroad companies, nor insurance companies were parties. The only meaning the question taken literally could have had was in relation to the fact that the defendant was in the insurance business. This fact was subsequently given to the jury by defendant\u2019s testimony, that he was an assistant office manager for John Hancock Life Insurance Company. The question was not properly stated if it related to his employment. The contention about prejudice will be answered hereinafter.\nPlaintiff testified that twice before the accident, defendant while driving placed his hand on her knee and that once he slipped his right arm from her shoulders down her back, and she remonstrated him each time. She denied, but defendant testified, that they parked south of Soldier\u2019s Field for about 20 minutes. He said that during this time his hands \u201croamed,\u201d but that he was,stopped; that plaintiff at no time indicated she was looking for any \u201cnecking\u201d; that she told him politely that she wanted no \u201chandling\u201d; that he sought to put his hand on her breast; that it was in the parking lot that she protested against his attempt to put his hand on her \u201cbust or breast\u201d; that she told him politely that she wanted no \u201chandling\u201d; and that she made it clear to him that there was \u201cno soap.\u201d. We cannot say that plaintiff\u2019s attorney over emphasized this testimony by his questions, and we think the testimony was relevant to the conduct attributed to him just prior to the accident.\nPlaintiff was 31 years old and the mother of three children'at the time the accident occurred. When admitted to the hospital she was suffering from a lheerated eyelid and nose, both of which required stitches, a bruised nose, and a comminuted fracture of the right femur requiring surgery. She was rendered unconscious as the result of a head injury which was diagnosed as a brain concussion in an \u201cadmission diagnosis.\u201d She was in the hospital from August 15 to September 16, 1947, and used crutches for 6 to 8 weeks thereafter. She did not resume her employment until January 15, 1948, and she walked with a cane until September, 1948. It is not disputed that her loss of wages and expenses amounted to $3,694.50. At the time of the trial she still suffered pain in her head and leg, and will permanently carry a metal plate, held by 6 screws, in her leg. The verdict is not excessive for these injuries.\nDefendant complains of the giving of an instruction which told the jury that if it found plaintiff should recover, it should include future suffering, if it found there was any, in determining the amount of damages. Defendant contends that the instruction was erroneous because there was a complete absence of any evidence that any of plaintiff\u2019s injuries were permanent or continuing. The testimony that plaintiff, at the time of trial, was still suffering from headaches and pain in her leg, and that she will always carry a metal plate in her leg was sufficient basis for the instruction. There is no merit in the contention.\nDefendant testified, among other things, that while driving south he saw evidence that an accident had occurred in the northbound drive; that he traveled south \u201c200, 300 yards\u201d while looking east; that he slowed down to \u201c20 to 25 miles an hour\u201d; that he was \u201cgaping\u201d at the accident; that \u201cI must have accidently pulled my wheel, I don\u2019t know\u201d; that \u201cas soon as I hit the abutment I turned my head to see where I was going\u201d ; and that the lamp post broke right through the bumper and \u201cpushed the wheel back toward me.\u201d\nWe agree with plaintiff that on either plaintiff\u2019s or defendant\u2019s theory the jury was justified in returning the verdict for the plaintiff. The verdict is not against the manifest weight of evidence. We conclude that the verdict was not the result of prejudice and for that reason think that the improper question to the juror was not prejudicial. The record does not show an unfair trial.\nFor the reasons given the judgment is affirmed.\nAffirmed.\nLews, P. J. and Feihberg, J., concur.", "type": "majority", "author": "Mr. Justice Kiley" } ], "attorneys": [ "Clausen, Hirsh & Miller, of Chicago, for appellant.", "Irving Gr. Zazove, and Isadore Wolf, both of Chicago, for appellee." ], "corrections": "", "head_matter": "June Simpson, Appellee, v. William Marks, Appellant.\nGen. No. 45,802.\nOpinion filed March 18, 1953.\nReleased for publication April 6, 1953.\nClausen, Hirsh & Miller, of Chicago, for appellant.\nIrving Gr. Zazove, and Isadore Wolf, both of Chicago, for appellee." }, "file_name": "0527-01", "first_page_order": 589, "last_page_order": 595 }