
    Melvin Keil, Plaintiff-Appellant, v. Kathleen McCormick, Defendant-Appellee.
    (No. 70-112;
    Second District
    — October 13, 1971.
    
    
      GUILD, J., dissenting.
    Fred Lambruschi, of Chicago, for appellant.
    Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellee.
    
      
       Rehearing was allowed December 9, 1971. Please disregard in Topical Index. See later issue for final opinion.
    
   Mr. JUSTICE PAGE

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Du Page County denying plaintiff a new trial on the issue of damages only or, in the alternative, on all issues.

By his complaint plaintiff had sought to recover for property damage to his automobile and for personal injuries to himself. Defendant filed an answer generally denying all allegations of the complaint, but, upon the trial of the cause and at the close of her case, she filed an amended answer in which she admitted she was negligent in the operation of her automobile in permitting it to strike the automobile of plaintiff. She admitted her negligence was the proximate cause of damage to the automobile of the plaintiff to the extent of $253.50 and denied “the plaintiff was injured as a proximate cause (sic) of defendant’s negligence.”

The jury returned a verdict for plaintiff in the sum of $253.50.

The proofs showed that on August 6, 1966, in Lombard, Illinois, plaintiff was at the wheel of his car stopped facing south on Elizabeth Street at its “four way stop” intersection with Maple Street. The defendant had stopped her car facing west on Maple Street at said intersection; saw the plaintiff’s car, and made a wide right turn to go north on Elizabeth Street. She crossed the center line of Elizabeth Street while watching a friend on a motorcycle in her rear view mirror and struck the plaintiff’s stationary car at the driver’s door on the left side at a speed of 5 to 10 miles an hour. She was proceeding in first gear in her standard transmission automobile and the impact was her first knowledge of the occurrence.

In his opening statement, defendant’s counsel informed the jury that the evidence would show there had been no injury to the defendant, to the two occupants of her car, nor to the plaintiffs son, an occupant of his car.

Plaintiffs counsel objected to this statement and a conference was held in chambers where the trial judge directed both counsel to present authorities.

Neither party then, nor on this appeal, presented any authority bearing directly on the question of the admissibility of evidence that other occupants of colliding vehicles were not injured as against an allegedly injured plaintiff-occupant.

Counsel for defendant did present the trial judge with four Illinois cases in which evidence of injury to persons other than parties was admitted and sustained on appeal (West Chicago Ry. Co. v. Kennelly (1897), 170 Ill. 508), (as part of the res gestae, describing the manner in which injuries were received and the difficulty of detailing the manner in which an injury was received without at the same time disclosing the others); (Budek v. City of Chicago (1935), 279 Ill.App. 410, (as explaining the failure to produce four deceased witnesses); Redmond v. Huppertz (1966), 71 Ill.App.2d 254), (as a recitation of what eye witnesses saw as a car jumped the curb and struck various pedestrians before hitting plaintiff. “They did not testify as to the nature or severity of the injuries suffered by any of the other persons struck by defendant’s car * * *. Injury or death to others in the same accident is an incident of the accident and is admissible as part of the res gestae”); Woodrick v. Smith Gas Service, Inc. (1967), 87 Ill.App.2d 88, (where feHow passengers of plaintiff testified to the details of the accident and that they had been injured. ‘They did not detail their injuries *’*’*. We are not confronted with a situation where the witness presented great detaff about her injury. That would not be admissible because it is not an issue in the case and could conceivably inflame the jury * * *.) Since no details were furnished there was no error in admitting the testimony.” Emphasis added.

On the basis of these authorities the trial court ruled that if testimony of the bare fact of injury to others is admissible, then testimony of the bare fact of non-injury to other occupants of the colliding cars would also be admissible and directed counsel not to go into anything further than whether or not they were injured.

Defendant, on direct examination by her counsel and in answer to specific questions, testified that neither she nor her passengers were “injured at all in any fashion.”

As a matter of logic, evidence that no one else was injured in two colliding cars might be relevant to the issue of whether or not the plaintiff was injured and possibly the extent of his injuries. But “relevancy” is not synonymous with “admissibility.” There are a number of positive exclusionary rules by which testimony is refused no matter how relevant; for example, an attorney may not testify to confidential communications of his client. Aside from such arbitrary rules, there is wide discretion in the court to exclude evidence for reasons of trial expediency, as where the evidence is so remotely related that its probative value is inconsequential or leads to collateral issues, confusion of issues, prejudice, unfair surprise and the like. Wigmore on Evidence, Section 29a, and at Section 443 “* * * The notion here is that in attempting to dispute or explain away the evidence thus offered, new issues will arise as to the occurrence of the instances and the similarity of conditions, new witnesses will be needed whose cross-examination and impeachment may lead to further issues; and that thus the trial wiH be unduly prolonged, and the multiplicity of minor issues will be such that the jury wiH lose sight of the main issue, and the whole evidence will be only a mass of confused data from which it wiH be difficult to extract the kernel of controversy * *

As stated in Vujovich v. Chicago Transit Authority, 6 Ill.App.2d 115, at page 118, “Plaintiff’s contention upon this appeal, if foHowed to its ultimate conclusion, that she is entitled to show the condition of the other passengers involved in the accident as indicating the severity of the collision and tending to support plaintiff’s claim that she sustained her alleged injuries, would open the door to proof of the physical condition of each of the other passengers. By the same token, if defendant was aHowed to dispute the injuries claimed by the other passengers, it would result in trying coHateral issues, involving other passengers, and virtually trying a number of cases in the instant case. Obviously, such coHateral matters are incompetent and should not be permitted in evidence before the jury.”

In addition to the facts outlined above, the proofs here showed that the plaintiff weighed approximately 250 pounds, was 6 feet 2 inches tall, age 35, was seated in a stationary car with his seat belt snugly fitted across his hips and thighs at the time of the coHision; that his 8 year old son was seated beside him; that plaintiff was watching traffic to his right when his son called “Look out!”; that he turned his head to the left when the defendant’s car was 4 or 5 feet away; that when the impact occurred it rocked plaintiffs car; that he was not sure if his head hit anything, but that something “popped” in his neck and it “cracked, like you crack your hands together loud”; that the defendant was a high school girl and her front seat passengers were girls aged 10 and 12. The proofs did not develop whether anyone other than plaintiff wore a seat belt. The defendant’s passengers did not testify or appear at the trial.

It is noted that while defendant’s testimony that neither she nor her passengers were injured was not only self-serving but hearsay as well, no objection to it on that basis was made at the trial.

Plaintiff presented bills for hospital care, physical therapy, x-rays, medication and physicians’ services totalling $3480.88. Nevertheless, the issue of whether he was in fact injured as a result of this occurrence was a matter of dispute at the trial on the basis of competent medical evidence.

It being well settled that details about the nature and severity of personal injuries to non-litigants in automobile cases is not admissible and not competent (Vujovich v. Chicago Transit Authority and Redmond v. Huppertz, supra) even to show the force of the impact, should the negative evidence of noninjury be governed by a different rule? We think not.

If details about injuries to others are not admissible as not being an issue in the case and being inflammatory to the jury, certainly the absence of injuries to others situated as in this case is not an issue and could be equally inflammatory. The issue of injury to the plaintiff was hotly contested on the medical evidence, and the lack of injury to child occupants of the vehicles, each being differently situated in the cars, of a different age, subject to different forces in different directions, possibly being in different conditions of health, growth, development and resiliency than the plaintiff, the respective weights and structural strengths of the cars involved are among the many collateral issues that might be raised and explored.

In an action to recover for damage to plaintiff’s building caused by the defendant’s use of dynamite in excavating a tunnel, the Supreme Court of Illinois said, “That other buildings at various distances from that of the appellees were not injured would not be competent, and would tend to introduce collateral issues likely to mislead and confuse the jury.” FitzSimons & Connel Co. v. Braun, 199 Ill. 390, at page 393.

The sole issue here is whether the admitted negligence of the defendant was the proximate cause of any injury to the plaintiff and we hold that the admission of evidence of no other injuries was error. ‘Where error is shown to exist, it will compel reversal unless the record affirmatively shows that the error was not prejudicial,” (Phillips v. Lawrence, 87 Ill.App.2d 60.) In our opinion the record does not show affirmatively that the evidence of no injuries to others was not prejudicial to plaintiff.

Defendant further contends that plaintiff waived any possible objection to the testimony of the defendant by his own testimony that his son was not injured and by failing to object when the defendant testified on direct examination that no one in her car was injured. However, having made his objection to the opening statement of defendant’s counsel and the trial court having made its determination that the evidence would be admissible' prior to the taking of any testimony, the plaintiff waived nothing thereby. “After the court has overruled objections to a certain class of evidence, the objecting party may introduce evidence of the same class to meet that of his opponent without waiving his right to claim the benefit of his objection on appeal.” Chicago City Ry. Co. v. Uter, 212 Ill. 174. See also Teter v. Spooner, 279 Ill. 39 and Bruske v. Arnold, 44 Ill.2d 132.

Our decision on these issues makes it unnecessary to consider other issues raised by plaintiff as they are not likely to be raised on a retrial of damages only.

For the reasons indicated, the judgment is reversed and the cause is remanded for a new trial on the issue of damages only.

Judgment reversed and cause remanded.

SEIDENFELD, J. concurs.

Mr. JUSTICE GUILD,

dissenting:

I must respectfully dissent from my colleagues in this case.

The majority opinion here cites no authority for their decision. The opinion is based on the theory that details of other injuries are not admissible as being inflammatory and that therefore the absence of injuries is equally inflammatory. I do not believe that to be the law.

In Budek v. City of Chicago (1935), 279 Ill.App. 410, cited by appellant as being applicable to show why other witnesses were not called as they had been killed in the accident. But counsel has failed to quote the balance of the opinion in this regard. The court stated at page 421:

“Furthermore the death of other occupants of the automobile was an incident of the accident under consideration. We are of the opinion that all the facts occurring at the time were proper to present in evidence.” (emphasis supplied)

The Budek case has been cited with approval by this court. In Redmond v. Huppertz (1966), 71 Ill.App.2d 254, 217 N.E.2d 85 this comt carefully distinguished the facts therein from Vujovich v. C.T.A. (1955), 6 Ill.App.2d 115, 126 N.E.2d 731 cited by the majority herein and stated:

“Injury or death of others in the same accident is an incident of the accident (citing Budek) and is admissible as part of the res gestae * # « We cannot find that this testimony was prejudicial to the defendant.”

Likewise, in Woodrick v. Smith Gas Service Inc. (1967), 87 Ill.App.2d 88, 230 N.E.2d 508 this court in citing Budek with approval stated:

“The witness simply testified to the circumstances of the accident and to the fact that she was injured. That is also a circumstance. Since no details were furnished there was no error in admitting the testimony.” Emphasis added.

If we have held that a witness in an accident can testify that he was injured, without going into details of the injury, certainly the converse is true, i.e., that a witness may testify that he or she, or other parties in the accident were not injured.

I would affirm the judgment of the trial court.  