Clamage v. Shapiro (48 Ill. App. 3d 90, 1977)

Mr. JUSTICE BUA

delivered the opinion of the court:

This is an appeal by defendant Donald Shapiro from a judgment entered in the Circuit Court of Cook County on a jury’s 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’s counsel on the issue of due care and counsel’s comment in closing argument on defendant’s 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.

On 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’s big toe had curled under his other toes, causing him to limp.

Subsequently, 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:

“Mr. Cooney [plaintiff’s attorney]: Following the accident, before the accident, did you have a limp.

A: No, sir.

Q: Did you have that problem with your toe curling under the big toe before the accident?

A: No, sir.

Q: Do you still have that problem?

A: Yes, sir.

Q: Do you have a limp now?

Mr. Mavrias [defense counsel]: Objection, your Honor. That is the same area. He has answered no physical difficulties. Counsel didn’t like the answer and he is asking—

Mr. Cooney: I like the answer, but the man doesn’t complain. We have to drag it out of him.

Mr. Mavrias: He has answered it three or four times.

Mr. Cooney: Let him answer again in fairness to him. It is his case.

The Court: Proceed. The jury already knows he has a limp anyways, Mr. Cooney.

Mr. Cooney: Well, that’s what I mean. You limp a little, do you?

The witness: Yes, sir.”

Thereupon, defense counsel, in camera, moved for a mistrial based on the court’s 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:

“Q: When you got into your car, you saw Mr. damage getting out of his car, is that right?

A: When I — pardon?

Q. When you got into your car, you saw Mr. damage getting out of his car.

A: When I got into — no.

Q: Isn’t that what you said on your deposition?

Mr. Mavrias: Objection, Judge, that is not the proper way to ask him. He should read the question and read the answer.

The Witness: I saw Mr. damage once.

Mr. Mavrias: Mr. Shapiro, just a minute, Judge, that is not the proper form.

The Court: All right.

Mr. Cooney: Well, I will ask you: Did you see him getting out of his car as you got into your car?

A: I saw him out of the car, but I don’t remember what terms, if it was when I got in or when I got out.

Q: Well, did you answer these questions under oath? I am on page 17.

‘Was he in or out of the car?

I think, if my recollection is correct, he was just getting out.

And where were you in reference to your car, at that point,

when he was just getting out?

I was just getting into mine.’

Isn’t that what you said?

A: That could very well be.

Q: But, didn’t you say that?

A: It could very well be. I’m not trying to argue with you. Take a look at it.

Mr. Mavrias: He has answered he is not disputing that. He said that.

Mr. Cooney: Well, then, that is the fact, is that right?

A: I saw him once and that evidently was the time I saw him.

Q: All right. Now, for the first time you are telling somebody that you had your foot on the brake when you backed up.

Now, you tell us where that is shown in here.

Mr. Mavrias: That is improper.

Mr. Cooney: Show us where your foot was on the brake, sir.

A: I was never asked the questions, sir. If I was asked the question, I’d answer.

Mr. Mavrias: That is an improper thing and counsel knows it. I move for a mistrial.

The Court: All right. Your motion is denied. Proceed. * * *

Mr. Cooney: Well, you cannot categorize the manner in which you went back into this man, can you?

A. What do you mean I can’t?

Q: As far as speeding.

A: Oh, yes, I can.

Q: Well, you were asked that question, and you couldn’t categorize it under oath before.

Mr.. Mavrias: Judge, the same objection. That is not the proper way to do it.

The Court: The objection is sustained.

Mr. 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.

‘Now, what was — can you categorize or describe for me

how you backed up your car?

No.

All right.

I have no idea.’ •

Isn’t that what you told us under oath a couple of months ago?

A: But, if I was asked the question if I had my foot on the brake—

Q: You read the question.

A: My foot was always on the brake. I don’t care what the questions says, I know what I did.

Mr. Mavrias: Objection.

The Court: You are objecting, and your objection is sustained.

Mr. Cooney: I am asking you to categorize the speed.

A: I don’t care what that says.

Q: All right. If you don’t care what it says under oath, I don’t care.

A: When I back up a car, and I don’t know who don’t—

The Court: All right. There is no question pending. And if you are making an objection, it is sustained.

Mr. Cooney: In rebuttal, I would like to read into the transcript what the questions were under oath and the date and circumstances.

Mr. Mavrias: I am objecting to this procedure. I don’t think it is proper.

The Court: All right. Your objection is sustained.”

Subsequently, during closing argument to the jury, Mr. Cooney stated:

“I 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.”

Continuing his argument, Mr. Cooney remarked:

“I called the defendant, Mr. Shapiro — 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.”

Defense counsel, Mr. Mavrias, commented during his argument:

“Now as Mr. Cooney indicated, he has some bias in this case. I don’t 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.”

These comments drew the following response:

“Mr. Cooney: Objection to that comment. I move that the jury be instructed to disregard that someone has something to lose in this case.

The Court: Sustained.

Mr. Mavrias: Objection, your Honor.

The Court: All right. Proceed.”

On rebuttal Mr. Cooney argued:

“