Fettson v. James

No. 1-96-2106 September 24, 1997

TYRONE FETTSON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY,
) ILLINOIS
)
v. ) No. 94-L-06420
)
)
KATIE L. JAMES and )
LIBERTY SCHOOL BUS COMPANY, )
)
Defendants-Appellants. ) THE HONORABLE
) EDWARD G. FINNEGAN,
) JUDGE PRESIDING.

PRESIDING JUSTICE COUSINS delivered the opinion of the
court:
Defendants, Katie L. James and Liberty School Bus Company,
were found liable for negligence in a suit involving an
automobile accident, whereupon a jury awarded damages of $25,000
to plaintiff. On appeal, defendants seek a new trial, arguing
that: (1) the trial court erred by refusing to allow evidence
which would have shown that plaintiff's claim for loss of income
was exaggerated and implausible, including evidence or
questioning of plaintiff's (a) income from tax returns for years
prior and subsequent to the year of the accident, (b) prior wage
loss claim, (c) lack of a bank account, and (d) cash payments;
(2) the trial court's sua sponte jury instruction regarding the
equal availability of witnesses was improper and prejudicial; (3)
the trial court erred in disallowing evidence of plaintiff's
expert witness' initial failure to produce medical records; (4)
the trial court erred by prohibiting evidence of other lawsuits;
and (5) during closing argument, plaintiff's counsel's improper
objections prejudiced defendants by wrongly implying to the jury
that defendants had prevented them from hearing important
evidence.

BACKGROUND
On November 11, 1993, in Chicago, Illinois, plaintiff,
Tyrone Davis Fettson, a professional singer and performer, was
driving westbound on Jackson Boulevard. He stopped at a red
traffic signal at the intersection of Jackson Boulevard and Homan
Avenue and then proceeded when the traffic signal turned green.
At the time, defendant, Katie L. James, a school bus driver
employed by defendant, Liberty School Bus Company, was travelling
southbound on Homan Avenue. When James entered the intersection
of Jackson and Homan, her bus struck the right rear section of
plaintiff's automobile. After the collision, both parties exited
their vehicles, and plaintiff complained to James about pain in
his neck, the right side of his back, and his right hip. Both
parties then proceeded to the nearest police station to fill out
reports.
The next day, plaintiff visited his physician who examined
him. His physician found that plaintiff sustained swelling of
the right hip, indicating bruising of the tissue and broken blood
vessels, and advised him not to work until he had sufficiently
recovered. Plaintiff underwent physical therapy with his
physician and returned to work nearly four weeks after the date
of the accident. Plaintiff incurred $860 in medical expenses in
connection with the treatment of his injuries.
At trial, plaintiff testified that, due to his injuries and
pain, he was unable to satisfy two previously executed
performance contracts during his recovery period. The first
contract was to pay plaintiff $7,500 per night for five
consecutive nights. Plaintiff had already fulfilled the first
performance the night before the accident, but was unable to
complete the remaining four engagements; hence, his damages
claimed therefrom were $30,000. Plaintiff's second contract was
for $52,500 and obligated him to perform the week following his
accident. The jury returned a verdict in favor of the plaintiff
for $25,000.
We affirm.

OPINION
I
Defendants first contend that the trial court erred by
refusing to allow evidence which would have shown that
plaintiff's claim for loss of income was exaggerated and
implausible. Defendants base their argument on four separate
rulings made by the trial court with regard to evidence or
questioning of plaintiff's income from tax returns, prior wage
loss claim, lack of a bank account, and cash payments.
Defendants argue that, individually or taken as a whole, the
trial court's rulings as to these matters constituted reversible
error.
A
We first address defendants' claim that error occurred when
the trial court allowed questioning of plaintiff's income from
his income tax returns only as to the year of the accident and
not for years before or after the incident. During cross-
examination of the plaintiff, defendants showed plaintiff copies
of his own tax returns for years 1990 through 1993. Plaintiff
identified the tax returns as his own, but plaintiff's counsel
immediately objected on grounds of relevance. Defense counsel
argued that information of plaintiff's income from tax returns
was relevant in light of his substantial claim of lost wages, but
the trial court overruled plaintiff's objection only as to the
1993 tax returns. Defendants argue that the trial court's
restriction to plaintiff's 1993 tax returns was error.
Generally, where a plaintiff seeks to recover lost wages, it
is proper for the court to allow the defendant to question
plaintiff about his income tax returns. Cerveny v. American
Family Insurance Co., 255 Ill. App. 3d 399, 411-13, 626 N.E.2d 1214 (1991). Cross-examination of plaintiff as to income tax
returns is also proper where plaintiff's testimony reveals a lack
of certainty over the amount of lost income. Wigington v.
Faulkner, 51 Ill. App. 2d 220, 201 N.E.2d 252 (1964). This
court, however, has found it to be error for a trial court to
allow defendant to probe extensively into a plaintiff's income
tax returns. Pozzie v. Mike Smith, Inc., 33 Ill. App. 3d 343,
347, 337 N.E.2d 450 (1975).
In Cerveny v. American Family Insurance Co., 255 Ill. App.
3d 399, 626 N.E.2d 1214, the plaintiff failed to offer any proof
of actual past earnings and, instead, implied to the jury through
direct testimony that her lost future earnings would be as great
as her alleged past earnings. Cerveny, 255 Ill. App. 3d at 411,
626 N.E.2d 1214. Equally important, this court noted that
defendant's line of questioning with regard to plaintiff's tax
returns was extremely limited, where defendant merely asked if
plaintiff had filed tax returns. Cerveny, 255 Ill. App. 3d at
412, 626 N.E.2d 1214.
Conversely, in Pozzie, we found defendant's questioning of
plaintiff's tax returns to be excessive, where defendant made
detailed inquiries into plaintiff's claimed deductions and income
disclosures in an attempt to discredit the plaintiff. Pozzie, 33
Ill. App. 3d at 347, 337 N.E.2d 450. There, the court censured
the defendant for attempting to cross-examine the plaintiff on
irrelevant matters. Pozzie, 33 Ill. App. 3d at 347, 337 N.E.2d 450.
We believe the case at bar is similar to Cerveny in that
plaintiff here relied largely upon his own testimony to establish
his claim for lost income, and defendant only briefly touched
upon the subject of income tax returns. Cerveny, however, stands
for the proposition that such limited questioning is not improper
or reversible error. Defendants in this case effectively argue
for an expansion of this rule, whereby more extensive questioning
of plaintiff's income tax returns would be proper. Although we
do not believe that defendants' questioning of plaintiff's tax
returns rose to the level of that in Pozzie, we cannot justify an
expansion of the general rule in this case for several reasons.
First, unlike Wigington and Cerveny, where plaintiffs'
complete failure to prove lost income justified inquiry into
their income tax returns, plaintiff here established a precise
amount of lost income based on his testimony, medical bills, and
copies of his performance contracts. In addition, the trial
court did not totally preclude defendants from questioning
plaintiff with regard to his tax returns, as it allowed
unrestricted questioning with respect to plaintiff's 1993 tax
returns. Moreover, defense counsel's line of questioning on this
subject was very brief and merely confirmed plaintiff's net and
gross income for 1993. Furthermore, defendants made no reference
to plaintiff's income or tax returns during summation.
Considering that plaintiff was not a salaried employee, but an
independent contractor, in our view, precluding questioning as to
income for prior and subsequent years was within the sound
discretion of the trial court. Such testimony would not have
been probative of plaintiff's income or lost wages in 1993. It
is well established that admission of evidence is a matter within
the discretion of the trial court, and evidentiary rulings will
not be reversed absent an abuse of discretion. Jackson v.
Pellerano, 210 Ill. App. 3d 464, 471, 569 N.E.2d 167 (1991).
B
Defendants also contend that the trial court erred by
refusing to allow questioning as to the amount of plaintiff's
wage loss claim in a previous, unrelated case. At trial,
defendants attempted to expose plaintiff's wage loss claim of
$200,000 in a case arising from injuries he suffered three months
before the November 11, 1993, accident. At issue was defendants'
argument that plaintiff had claimed lost wages in a prior lawsuit
for a period of time which encompassed the time-span at issue in
the instant case. The trial court sustained plaintiff's
objection to this line of inquiry, calling into question its
relevance, particularly in light of the court's earlier granting
of plaintiff's motion in limine barring evidence of prior
lawsuits. However, while the trial court prohibited defense
counsel from mentioning the amount of plaintiff's prior wage loss
claim, it did allow defendants' to impeach plaintiff with regard
to the allegedly overlapping time periods in which plaintiff
claimed lost income.
Generally, any evidence which has a natural tendency to
establish the fact in controversy should be admitted. Mueller v.
Yellow Cab Co., 110 Ill. App. 3d 504, 508, 442 N.E.2d 595 (1982),
citing People v. Newsome, 291 Ill. 11, 19 (1919). Defendants
rely primarily upon this general rule in Mueller, notwithstanding
the limiting precept upon which it is based--namely that of
relevancy. Indeed, the "basic principle which animates our law
of evidence is that what is relevant generally is admissible."
Mueller, 110 Ill. App. 3d at 508, 442 N.E.2d 595, citing People
ex rel. Noren v. Dempsey, 10 Ill. 2d 288, 293, 139 N.E.2d 780
(1957). Furthermore, relevancy is shown where the evidence
offered tends to prove a fact in dispute or to render a matter in
question more or less probable. Mueller, 110 Ill. App. 3d at 508,
442 N.E.2d 595, citing People v. Rodgers, 53 Ill. 2d 207, 214-15,
290 N.E.2d 251 (1972).
In the case at bar, defendants argue that they were
prejudiced by not being allowed to impeach the plaintiff vis-a-
vis the amount of his prior wage loss claim. We disagree. We
agree with the trial court that the specific amount of damages
claimed by plaintiff in the prior, unrelated lawsuit was not a
relevant issue in the instant case. We are not convinced that
such a fact would tend to prove the extent of plaintiff's damages
or credibility in this case. Moreover, considering that the
trial court did allow impeachment regarding the overlapping
timing of possibly duplicative claims, defendants were not
prejudiced by this exclusion as to the dollar amount of the prior
claim. We, therefore, find no abuse of discretion in this
evidentiary matter.
C,D
Defendants also claim that they were prejudiced when the
trial court precluded questioning about plaintiff's method of
payment and his lack of a bank account. They argue that, by not
being able to delve into the fact that plaintiff dealt only in
cash and that he had no bank account, they were further prevented
from creating an inference that plaintiff exaggerated his lost
income claim.
During cross-examination of the plaintiff, defendants asked
if plaintiff had any bank accounts into which he put earnings
from his various performances. Plaintiff's counsel objected on
grounds of relevance, and the court asked defense counsel to
state the relevance of that inquiry. Defense counsel failed to
answer the question directly, and the court sustained the
objection. Soon thereafter, defense counsel asked a series of
questions about plaintiff's cash payments; namely, whether
plaintiff was paid in cash from his engagements and what he did
with the cash. Plaintiff's counsel's objection on grounds that
the question was asked and answered was sustained, and defense
counsel chose not to pursue that line of questioning any further.
As a rule, the appellant must establish prejudice when
seeking reversal. Jackson v. Pellerano, 210 Ill. App. 3d 464,
471, 569 N.E.2d 167 (1991). With respect to the issue of
plaintiff's lack of a bank account, defendants would have to show
that their inquiry was relevant to the case. Defendants failed
to show relevancy at trial, and they have, likewise, failed to
establish this on appeal. Defendants cite no authority to
support their position that it is error for a trial court to
disallow questioning of one's lack of a bank account. Lastly,
our review of the record shows that defendants emphasized this
issue during summation, and, therefore, were not precluded from
impressing this point upon the jury.
Similarly, defendants cannot show that they were prejudiced
by the trial court's ruling on the issue of their questioning
plaintiff's cash payments. While we believe that such inquiry
may have been irrelevant, the trial court did not prohibit that
line of questioning as defendants argue. Rather, defendants
simply chose to abandon the topic. In addition, during closing
arguments, defendants were allowed to argue that plaintiff had
manufactured or exaggerated his wage loss claim.
We, therefore, find that no reversible error occurred with
respect to the exclusion of evidence or questioning of
plaintiff's income from tax returns, prior wage loss claim, lack
of a bank account, or cash payments.
II
Defendants next contend that the trial court's sua sponte
jury instruction regarding the equal availability of witnesses
was improper and prejudicial. During closing arguments, defense
counsel raised the question of the lack of corroborating
testimony from plaintiff's band members and a party to one of his
unperformed contracts. Plaintiff's counsel objected, claiming
that defendants had deposed the band's leader who provided data
on all of the witnesses at issue. Defense counsel objected to
his opponent's interruption, but the court answered with the
following sua sponte instruction:
"THE COURT: Ladies and gentlemen, I am instructing you
that as a matter of law these witnesses were available to
both sides."
Defendants first argue that this instruction was unwarranted
and, therefore, error since they were making proper comparison
and contrast of the evidence by commenting on the absence of any
testimony other than plaintiff's. In addition, defendants
contend that the trial court incorrectly concluded that the
uncalled witnesses were equally available to them.
Generally, it is improper for a defendant to comment upon a
plaintiff's failure to bring forth a witness who is not under
plaintiff's control or who is equally available to the defendant.
Lebrecht v. Tuli, 130 Ill. App. 3d 457, 484, 473 N.E.2d 1322
(1985). The risk is that the jury may presume that the testimony
would have been unfavorable to the party which failed to call the
witness. Lebrecht, 130 Ill. App. 3d at 484, 473 N.E.2d 1322.
Nevertheless, counsel may argue the evidence and reasonable
inferences therefrom. Northern Trust Co. v. Skokie Valley
Community Hospital, 81 Ill. App. 3d 1110, 1126, 401 N.E.2d 1246
(1980).
As to this exception, defendants rely upon Chavez v. Watts,
161 Ill. App. 3d 664, 669, 515 N.E.2d 146 (1987), in which
defense counsel, during closing argument, properly drew
inferences and conclusions from the evidence. Lebrecht and
Northern Trust Co. offer better guidance on this issue, however.
In Lebrecht, the statements objected to during closing argument
recapitulated events and evidence at trial; namely, that counsel
had presented the only testimony involving an issue of causation.
Lebrecht, 130 Ill. App. 3d at 484, 473 N.E.2d 1322. Similarly in
Northern Trust Co., defense counsel reminded the jury of a
witness which its party called and the fact that the witness had
to be called back for further testimony. Northern Trust Co., 81
Ill. App. 3d at 1126, 401 N.E.2d 1246. This court noted in that
case, as well, that such comment by counsel was a fair and proper
description of what transpired at trial. Northern Trust Co., 81
Ill. App. 3d at 1126, 401 N.E.2d 1246.
In the aforementioned cases, attorneys made comments which
were permissible accountings of evidence or events at trial. In
the case at bar, however, defense counsel was not merely
comparing or contrasting evidence, but calling to the jury's
attention the fact that plaintiff failed to call any witnesses to
corroborate his claim of lost income. In this case, therefore,
the general rule in Lebrecht prohibiting such comment remains
applicable.
Defendants' argument disputing the equal availability of
witnesses is also unpersuasive. Defendants argue that the
relationship between plaintiff and the witnesses at issue
supports a finding that the witnesses were either under
plaintiff's control or not as available to defendants.
Defendants cite Kerns v. Lenox Machine Co., Inc., 74 Ill. App. 3d
194, 198-99, 392 N.E.2d 688 (1979) (employee of defendant-
noncalling party was under its control, therefore, not equally
available to plaintiff) and Biehler v. White Metal Rolling &
Stamping Corp., 65 Ill. App. 3d 1001, 1003-4, 382 N.E.2d 1389
(1978) (biased witness such as noncalling party's relative is not
equally available to parties). We, however, find the instant
case distinguishable from Kerns and Biehler. Here, there is no
evidence in the record that plaintiff occupied the position of
"employer" in an employer-employee relationship such as in Kerns.
Similarly, the presumption supported in Biehler was based on the
existence of a familial relationship or the like between
plaintiff and an uncalled witness--a relationship lacking in the
case at bar. Indeed, in looking at the record, this court finds
no sufficient evidence that the witnesses at issue were not
equally available to both parties. This court has established
that, where a party fails to show that a missing witness was
under the opposing party's control, the court may refuse to allow
comment on the subject. Wetherell v. Matson, 52 Ill. App. 3d 314,
319, 367 N.E.2d 472 (1977); See also Foerster v. Illinois Bell
Telephone Co., 20 Ill. App. 3d 656, 662, 315 N.E.2d 63 (1974);
Goshey v. Dunlap, 16 Ill. App. 3d 29, 33, 305 N.E.2d 648 (1973);
Wofford v. DeVore, 73 Ill. App. 2d 92, 99, 218 N.E.2d 649 (1966).
Consequently, we hold that the trial court's sua sponte
instruction was within its sound discretion and based on an
accurate view of the law and the evidence presented at trial.
III
In addition, defendants argue that the trial court erred in
disallowing evidence of plaintiff's expert witness' initial
failure to disclose certain medical records. During cross-
examination of plaintiff's expert witness and treating physician,
defense counsel attempted to impeach the witness by showing that
his initial failure to produce all past records of plaintiff
indicated bias. Plaintiff's counsel objected, noting that
defendants received the remainder of plaintiff's past medical
records long before trial. The court sustained the objection on
grounds that defense counsel was improperly attempting to try
collateral issues. We agree.
Evidence of a collateral fact is generally inadmissible,
since it is likely to divert jurors' attention away from the
relevant issues in the case. Tzystuck v. Chicago Transit
Authority, 124 Ill. 2d 226 (1988). The record indicates that
defendants did, indeed, receive all of plaintiff's medical
records long before the commencement of the trial. The trial
court, therefore, properly characterized defense counsel's
attempts at impeachment as collateral.
IV
Defendants further contend that the trial court erred by
prohibiting evidence or questioning of other lawsuits in which
plaintiff was involved. While defendants were allowed to
question extensively on the subject of plaintiff's prior
injuries, defendants contended at oral argument that they were
foreclosed from making inquiries into plaintiff's prior lawsuits.
The record, however, clearly indicates that defendants did,
in fact, frequently question plaintiff on this subject.
Following are some excerpts from the transcript of the trial
proceedings in which defendants' attorney cross-examined
plaintiff with regard to prior lawsuits:
"Q. There was a lawsuit filed on your behalf as a result of
that Delta accident, wasn't there?
A. Yes.
***
Q. Remember a slip and fall where you made a claim against,
at O'Hare, where you made a claim --
A. At the airport, at the airport.
Q. -- against the City of Chicago?
A. At O'Hare Field Airport.
Q. Yes.
A. Yes.
***
Q. Now in connection with that September 20th accident,
September 20, 1993, two months before this accident, there
was a lawsuit filed; correct?
A. Say it again.
Q. There was a lawsuit filed in connection with that
accident, correct?
A. Yes.
Q. Now those questions and answers we've just talked about
were in connection with that lawsuit, right?
A. Yes.
***
Q. Isn't it a fact that in that lawsuit entitled Tyrone
Davis versus Alnita Johnson, *** you claimed you were still
having daily problems from your neck and your hip; isn't
that true?
A. Yes."
Indeed, plaintiff admitted to all prior injuries revealed by
defense counsel on cross-examination, and plaintiff testified
consistently with respect to questions of his prior lawsuits
involving similar injuries. Defendants' contention that they
were prejudiced by being precluded from making such inquiries is
unfounded, as defendants either chose not to impeach plaintiff
with respect to his prior suits in certain instances, or they
obtained answers from plaintiff on that subject.

Once again, appellant has the burden of showing prejudice by
an improper ruling. Jackson v. Pellerano, 210 Ill. App. 3d 464,
471, 569 N.E.2d 167 (1991). We hold that no such prejudice
occurred. The record in the case sub judice resoundingly rebuts
defendants' contention on this issue.
Defendants' argument that they were improperly prohibited
from impeaching plaintiff with his prior allegations of permanent
injury in previous cases fails, as well. We agree with the trial
court's exclusion of such evidence, as such language in pleadings
is not probative of the veracity of subsequent claims or injuries
as defendants suggest. Defendants rely upon Kokotkwiecz v.
Leprino Foods Co., 162 Ill. App. 3d 493, 502, 515 N.E.2d 395
(1987) and Hoffman v. Wilson, 60 Ill. App. 2d 396, 403, 208 N.E.2d 607 (1965), for the proposition that it is permissible to
cross-examine a plaintiff as to previous injuries when the
injuries are of a similar nature to those at bar. See Leahy v.
Illinois Power Co., 103 Ill. App. 3d 487, 490, 431 N.E.2d 390
(1981). These authorities are distinguishable from the present
case, however, as they allow for such questioning where defendant
makes a good faith effort to impeach the witness. Kokotkwiecz,
162 Ill. App. 3d at 502, 515 N.E.2d 395; Hoffman v. Wilson, 60
Ill. App. 2d at 403, 208 N.E.2d 607.
In the instant case, plaintiff did not deny injuries in
prior lawsuits, and defendants cannot claim to have made a good
faith effort to impeach plaintiff on this subject where they
often failed to complete any such line of questioning.
We hold that defendants suffered no prejudice as a result of
the trial court's ruling on this matter. Also, the court did not
abuse its discretion in so ruling, given the fact that defendants
were allowed to carry out extensive cross-examination with
respect to plaintiff's prior injuries.
V
Lastly, defendants contend that plaintiff's counsel made
protracted "speaking objections" which prejudiced the defendants.
During closing argument, defendants argued that plaintiff could
have performed despite his claimed injuries from the accident and
that plaintiff did not disprove this at trial. Plaintiff's
counsel objected on grounds that the defense was misstating the
facts, arguing that plaintiff did, indeed, attempt to show the
court the effect which plaintiff's injuries had on his ability to
perform. In support of this contention, plaintiff's counsel
pointed to its earlier attempt to have plaintiff perform in the
courtroom. The court sustained plaintiff's objection.
Defendants rely on Mykytiuk v. Stamm, 196 Ill. App. 3d 928,
936, 554 N.E.2d 505 (1990) (improper argument or conduct by
counsel is an adequate basis for an award of a new trial). We
find that the attorney misconduct alleged in the present case is
distinguishable from that which occurred in Mykytiuk. The
impropriety involved there dealt with counsel's inappropriate
attempt to introduce evidence which the court found would have
unduly influenced the jury; particularly since the case was close
factually, and sharp conflicts in evidence existed. Mykytiuk, 196
Ill. App. 3d at 936, 554 N.E.2d 505. In the case at bar,
however, there was no overwhelming conflict in evidence. And,
although plaintiff's counsel's objection here was not succinct,
his grounds were sound and properly ruled upon by the trial
court. Therefore, in our view, plaintiff's counsel's remarks did
not constitute reversible misconduct.
Accordingly, we affirm the decision of the trial court.
Affirmed.
GORDON and LEAVITT, JJ., concurring.