Ullrich v. Chicago City Railway Co.

Mr. Justice Clark delivered the opinion of the court. This is a suit for damages on account of personal injuries sustained by the plaintiff through the negligence of the defendant. There was a trial before the court and a jury, a verdict being rendered for five, thousand five hundred dollars upon which judgment was entered. Liability of the defendant for some amount was admitted by it, the accident being due to a collision of two cars, both operated by the defendant, and in one of which plaintiff was riding as a passenger. The points relied on for a reversal are: First, that the damages are excessive; second, that there was error in permitting the wife of the next friend to testify; third, that there was error .in the judgment in that, as alleged, the judgment treats as the plaintiff, William Ullrich, the father and next friend, and that the judgment should have been in favor of the infant and not in favor of the next friend; fourth, that counsel for plaintiff erroneously made use of medical works in the cross-examination of witnesses, making improper statements distinctly prejudicial to the defendant, under the guise of asking questions, and in making arguments for the admissibility of evidence; and fifth, that there were other errors in the admission of evidence. I. Counsel for both parties have devoted the larger part of their briefs and argument to the first proposition advanced by the defendant, namely, that the damages are excessive. On the part of the plaintiff, who was fifteen years of age at the time of the accident, it is insisted the record discloses that she was confined to her bed for several months after its occurrence, and practically up to the time of the trial, which was nearly two years thereafter; that during the early portion of this period she suffered from almost daily attacks of hysteria and hysterical convulsions, which became worse and more violent until November following the accident, which occurred in August, 1909; that in the former month she was taken to a hospital, where she stayed for a few weeks, from which time the hysterical attacks gradually became less frequent, until about two months prior to the trial, when she was having them only during her monthly periods, and perhaps once besides in each month; that her abdomen was swollen and distended, necessitating almost constant use of hot applications to her stomach; that this condition was diagnosed by one of her attending physicians as peritonitis, and by another as being some injury to the internal organs of the abdomen; that there was also inflammation of the abdomen, and for the greater portion of the time considerable temperature; that the inflammation resulted in a prolapsus of the uterus with adhesions; that during this time she became greatly emaciated; that her weight was 153 pounds before the accident, and 117 pounds at the time of the trial; that she was by the accident rendered a nervous and physical wreck. On the part of the defendant it is claimed to be demonstrated by the evidence that the plaintiff’s manifestations of hysteria antedated for a long time the street car accident; that the expert evidence in the record is conclusive of the proposition that trauma-j tism, which is defined as external violence producing bodily injury, is incapable of producing hysteria in a healthy person; that it is also demonstrated by the evidence that peritonitis cannot be caused except by infection, and that the accident in question could not and did not produce any pelvic infection. We have carefully read all of the testimony in the case, both lay and medical, and find it decidedly conflicting as to many material matters. After such careful perusal, however, we are not of the opinion that the verdict is as alleged, so manifestly against the weight of the evidence as to require a reversal of the judgment on that ground. It will be necessary, therefore, to consider the other points raised by the defendant. II. It is urged that there was error in the admission of the testimony of the mother of the plaintiff because she was the wife of the father, who appears as next friend to the plaintiff in the case. The question as to the weight to be given to her testimony, because of her interest as mother of the plaintiff, was of course one for the jury. Does the law inhibit her testimony because she happens to be the wife of the one who sues as next friend ? We think not. It is urged that the next friend would be liable for costs in the suit if the case were decided against the plaintiff. We do not so construe the statute. A bond for costs was given in this case by a stranger to the record, and was not joined in by the next friend nor was it required to be. Notwithstanding the assault made by defendant upon the logic of the opinion, we think that in Illinois Cent. R. Co. v. Becker, 119 Ill. App. 221, Mr. Justice Creighton has correctly set forth the principles of law governing the question at issue. III. It is next said that the judgment is erroneous because it is in favor of William Ullrich, the next friend. The language of the judgment order is “that the plaintiff do have and recover of and from the defendant his said damages of five thousand five hundred ($5,500) dollars in form as aforesaid by the jury assessed, together with his costs and charges in this behalf expended and have execution therefor.” The contention is that the use of the word “his” makes the judgment one in favor of William Ullrich, next friend. The point is technical and, in view of the Ulinois statute respecting judgments, is untenable. The defendant treated the judgment as in favor of-the minor on the appeal. The bond runs to “Lillian Ullrich a minor,” etc. IV. It is urged by the defendant that the attorney for the plaintiff in the cross-examination of medical experts whose testimony was taken on behalf of the defendant, indirectly got before the jury statements contained in medical works on questions of hysteria, etc., by improperly incorporating the language taken from such works in questions propounded to such witnesses, and that he also made improper statements distinctly prejudicial to the defendant, under the guise of asking questions and of making argument for their admission. It is said that his conduct was such that the court erred in not granting the motion for a new trial because of it. The answer of the attorney for the plaintiff is that no such statements were introduced in evidence (a proceeding which he admits would be improper), and that the only reference made by plaintiff’s counsel to medical authorities was for the purpose of developing the extent of the witness’ knowledge of the subject and the basis of his opinion; that the questions propounded by him came within the rule laid down in Chicago Union Traction Co. v. Ertrachter, 228 Ill. 119, viz., that a medical expert may be cross-examined as to the basis of his opinion and as to whether the authorities do not lay down a different rule, and the like. Counsel for the plaintiff admittedly had medical works before him in court, but we are unable to say that in any question propounded on the cross-examination of defendant’s witnesses extracts from the works are incorporated. Defendant’s counsel repeatedly objected to plaintiff’s counsel “asking’ questions and giving the impression that he was reading from a book.” The former himself, on the redirect examination of one of defendant’s witnesses, read from a book handed him at his request by plaintiff’s counsel, and in the brief it is said “he 'was able to find extracts which were decidedly favorable to defendant’s theory.” As we understand it, these extracts were placed before the jury by incorporating- them in questions asked by defendant’s counsel. In our opinion he is not in position now to complain that there was reversible error in what is alleged to be a fact, that plaintiff’s counsel in asking the question on cross-examination gave the jury “the impression that he was reading from a book.” The rule is well established that statements made in medical books are not competent evidence. We agree also with counsel for defendant in the proposition that that which cannot be accomplished directly should not be done indirectly; that is to say, quotations from so-called authorities should not be incorporated in questions in such a manner as to lead the jury to infer that the attorney propounding same is reading from the so-called authority or text-book. Complaint is made that in arguing questions of law before the court, plaintiff’s counsel made remarks in the presence of the jury calculated to prejudice them. It has been held in a recent decision that although when counsel is corrected and the jury instructed to disregard improper remarks, the attorney’s misconduct ordinarily is not ground for reversal, yet in a clear case courts of review will reverse a judgment for such improper conduct, even though the trial court has sustained objections interposed by opposing counsel. Appel v. Chicago City Ry. Co., 259 Ill. 561. It is said in the case of West Chicago St. R. Co. v. Annis, 165 Ill. 475: “It is, however, as held in the Cotton case, supra (140 Ill. 486), a matter resting in the sound discretion of the trial judge to say when, under all the circumstances of the case, and in view of the counter remarks which may be made and the temper and character of the jury, whether a new trial should be granted or not, and unless it satisfactorily appears from the record that the trial court has abused its discretion in this regard courts of review cannot interfere.” After careful esamination of the record we are unable to say that in the refusal to grant a new trial in the present case there was an abuse of discretion by the trial judge. The remarks which are criticized were not made in an argument to the jury as in the Appel case, supra, but, as heretofore stated, were addressed to the court. V. We have carefully considered the other questions raised as to the alleged erroneous rulings of the court on the admission of evidence, and are of the opinion that no error was committed on account of which the judgment should be reversed. The judgment will be affirmed. Affirmed.