Brown v. Arco Petroleum Products Co.

JUSTICE RIZZI, dissenting:

I dissent. I would affirm the judgment.

The majority first claims that there was error during the voir dire. Although the majority finds that the error was “highly improper,” it also finds that there was “no abuse of discretion in the trial court’s denial of defendants’ motion for a mistrial on this point.” While I believe that the majority’s findings are inconsistent, I also believe that nothing improper occurred during the voir dire.

The law firm representing the defendants is Baker & McKenzie. During the voir dire, plaintiff’s counsel asked one of the prospective jurors if she had heard of the law firm of Baker & McKenzie. Counsel then asked: “Do you know any of the 150 attorneys that work there?” No immediate objection was made, but defense counsel later made a motion for mistrial. The court denied the motion, and no further comment was made on the size of Baker & McKenzie. In my opinion, the trial court acted properly for several reasons.

In the first instance, I do not see how defendants were prejudiced merely because the jury knew that there are 150 attorneys working at Baker & McKenzie’s Chicago office. Indeed, most large law firms, like Baker & McKenzie, promote and disseminate the fact that they are a large law firm, including the high number of attorneys that work at the firm. Large law firms cannot have it both ways, on the one hand promoting and disseminating the high number of attorneys that work at their firm, and on the other hand claiming that they are somehow prejudiced if a juror knows of the very facts that they themselves are promoting and disseminating. Surely, no one would conclude that if a juror knew that there are 150 attorneys working at Baker & McKenzie it would be grounds for disqualification. Yet, that conclusion is a logical extension of the majority’s reasoning. Moreover, the fact that a large corporation like defendant Arco Petroleum Products Company is represented by a large law firm is hardly unexpected. Under the circumstances, I see no prejudice by plaintiff’s counsel’s question.

In the second instance, I do not believe that any error occurred. An element essential to the integrity of the jury process is that the parties to the litigation have a reasonable opportunity at the voir dire to ascertain that the fact-finding body is free from influence-producing relationships unfavorable to them. (Watson v. Fischbach (1973), 54 Ill. 2d 498, 501 , 301 N.E.2d 303, 305 .) In my opinion, the question asked by plaintiff’s counsel was asked in this vein.

During the course of their lives, the public hears the names of many law firms of varying sizes bandied about in all kinds of conversations and communications. However, it is fair to assume that at any particular time law firms have a nebulous identity to members of the public. Thus, if a prospective juror is asked if he or she knows any of the “150 attorneys that work” at a particular law firm, the size of the law firm may serve as an aide memoire and allow the prospective juror to let counsel know whether he or she in fact knows of any of the attorneys at the law firm representing the other side in the litigation. Thus, I believe that merely stating the number of attorneys that work at the law firm representing one of the litigants, in the manner that was done in this case during the voir dire, has a valid purpose.

Accordingly, I believe that plaintiff’s counsel’s question was proper because it afforded the plaintiff a reasonable opportunity to ascertain whether the prospective juror might be free from influence-producing relationships unfavorable to the plaintiff. I also believe that the defendants were not prejudiced by the question. Moreover, the doctrine of de minimis non curat lex plainly applies if one believes error had occurred; the matter therefore cannot be part of a “cumulative effect” of errors which might have affected the trial. In my opinion, the majority’s conclusion “that plaintiff’s counsel’s statement served no purpose, except to draw attention to the size of- defendants’ law firm” is a figment of an unwarranted presumption.

The majority next discusses the defendant’s contention “that the trial court erred in using the Dead Man’s Act to restrict Roland’s testimony.” On this point, I agree with the majority’s belief that no “prejudice resulted from the trial court’s action.” I also agree with the majority’s conclusion: “Given the short length of time involved and the necessarily limited nature of the testimony Roland could have given, we do not believe the barred testimony would have materially affected the result.

Next, the majority discusses the plaintiff’s cross-examination of Richard Miriani. I agree with the majority’s conclusion: “We find no error in plaintiff’s counsel’s cross-examination of Richard Miriani.”

The majority next discusses the issue of defendants’ questioning of plaintiff’s reconstruction expert. The majority concludes: “[W]e agree with defendants’ contention that the trial court improperly limited their cross-examination. Defendants attempted to question Aycock about the materials he relied upon in reconstructing the accident. Following an objection by plaintiff, the trial court ruled that defendants could not ask whether Aycock considered statements made by Roland in reaching his conclusions. An expert witness may disclose the underlying facts or data which form the basis for his opinion, even if this evidence is otherwise inadmissible. (See Wilson v. Clark (1981), 84 Ill. 2d 186 , 417 N.E.2d 1322 .) Therefore, defendants were entitled to determine whether Aycock took Roland’s statements into consideration and the trial court erred when it ruled that the Dead Man’s Act precluded defendants’ questions.” I disagree.

The record clearly shows that none of Aycock’s opinions were based upon anything stated by Roland, but rather Aycock’s opinions were based on his own visit to the scene. Thus, the trial court’s order blocking cross-examination based upon Roland’s statements to the police and in his deposition was proper. To me it is plain that defense counsel was not attempting to cross-examine Aycock about Roland’s statements for the limited purpose of explaining the basis of his opinions, as would be permitted under Wilson v. Clark. Rather, defense counsel wanted to cross-examine Aycock about Roland’s statements in the presence of the jury solely for the purpose of having the jury hear evidence which was not admissible. This is clearly demonstrated by the colloquy that occurred between the court and counsel:

“DEFENSE COUNSEL: Well, judge *** I’m entitled to elicit admissions from him that, in fact, he was aware of other statements or information or material and that either he discounted those or didn’t consider those. *** That’s all part of the credibility of this witness, and it’s all part of his modus operandi, what does he consider that he used, what did he specifically exclude in coming to these conclusions.

THE COURT: All right. Any reference to whether he considered anything that Mr. Roland may have said would create a problem, and if you insist on knowing this, I’ll let you ask it outside the presence of the jury, whether or not he considered any of the matters that Mr. Roland may have said either to the police or in his deposition, but I will agree with [plaintiff’s counsel] that we should not ask him whether he considered or made it in any way appear that he may have considered anything Mr. Roland said in front of the jury. That’s my ruling.

DEFENSE COUNSEL: Well, I’m at a loss, your honor. I don’t understand something. I’m asking if there’s something that he didn’t consider.

THE COURT: Well, you’re doing it indirectly. I would ask you not to refer to the deposition of Mr. Roland in front of the jury. If you want to find out, I’ll bring him right back in here now. *** You can inquire in a different fashion, but I will now instruct you not to ask any questions concerning Roland’s deposition or anything that Roland may have told to the police or to infer that this may have been considered. If you want to find it out, I’ll let you do it outside the presence of the jury. That’s my ruling.”

Defense counsel never accepted the court’s invitation to question Aycock outside the presence of the jury. It is improper for counsel to ask questions in front of the jury on cross-examination, which by innuendo may detract from a witness’ testimony, when there is no good-faith intention to follow up with proof of the facts to which counsel alludes. The practice of offering matters in the presence of the jury that counsel knows to be inadmissible, in a manner calculated to elicit objections and create an appearance of concealment on the part of opposing counsel, must not be condoned. When, as in the present case, a trial judge prevents such tactics from occurring in his or her courtroom the trial judge should be commended not reversed. I commend the trial judge here.

The majority also finds that “the trial court also erred in allowing certain portions of Anwar Younan's statement to be read into evidence.” Anwar Younan is a cab driver and a former truck driver. He was one of the first persons to arrive at the accident scene. At trial, he testified that he saw no lights on the Arco tanker until he was nearly upon it. On cross-examination, defense counsel impeached Anwar Younan with the use of an unsigned court reporter’s statement that had been previously taken of the witness. The following occurred:

“Q. Do you remember being asked this question and giving this answer:

Q. No problem, with visibility?

A. No. It was night time.

Q. Did the truck have any lights?

A. It had one over here and one over here.

Q. You are indicating — you are saying the truck had lights on the bottom of the tanker and one on each end?

A. Yes.

Q. None on top?

A. No.

Q. Do you remember being asked those questions and giving those answers?

A. Yes.”

Although Anwar Younan admitted at trial that he had made the previous answers to the questions that had been asked him, he testified that he did not remember the court reporter asking him the questions and he did not remember the court reporter. Defense counsel then called the court reporter to testify at trial to the same series of questions and answers that had been asked of and answered by Anwar Younan at trial. After this had been accomplished, plaintiff’s counsel sought to inform the jury of the complete statement that Anwar Younan had given the court reporter relating to the lights on the truck. When plaintiff’s counsel attempted to cross-examine the court reporter for that purpose, defense counsel objected and the following occurred outside the presence of the jury:

“PLAINTIFF’S COUNSEL: First of all, there’s [s-ic] multiple answers to his objection. Number one is I don’t think this is impeaching. That’s number one.

Take a look at what he’s saying over here. He says, no problem with visibility, no. And the court has heard this witness testify in court, and the court knows that there’s a language problem with this witness generally.

And keep in mind what he’s saying over here. When he was asked at trial whether or not there were any lights on the side of the truck, he says, no, it was dim, he didn’t see any.

Now, over here at the statement, he says, ‘It was nighttime, the truck didn’t have too many lights on top.’

I don’t know what that means. Certainly, it’s too many lights on top. That’s what he has written, okay. ‘Did the truck have any lights? It had one over here and one over here.’

Well, I don’t know what that means because one over here and one over here — and he doesn’t say whether or not the lights are on or off by the way.

* * *

First of all, I think the whole context should be read to the jury, and not that portion. If it is impeaching, the whole context should come out, not just that portion that counsel likes the jury to hear.

Because if you read everything, in my opinion, it is completely consistent with his testimony here. There is no indication over here that he’s saying anything which is inconsistent, and if there are inconsistencies, the inconsistencies are so minor that it doesn’t amount to impeachment. Because you don’t have direct answers and direct questions on the same issues that he talked about over — during the trial of the case.

So for those reasons, we think that the jury should hear the entire discussion as opposed to just part of them.”

The trial court denied defense counsel’s objection, and plaintiff’s counsel completed his cross-examination of the court reporter as follows:

“Q. And were these also, these questions and answers, transcribed by you?

‘Question: And none on top?’

The answer was, ‘No’; is that correct?

A. That’s right.

Q. And then another question, ‘And normally there should be lights on top?’ And the answer is, ‘Yes’?

A. Yes.

Q. And then he said, ‘But this particular one didn’t?’ And he answered, ‘No’; is that correct?

A. Right.

Q. And then he said, ‘Did you notice if the truck’s headlights or taillights were on’; is that correct?

A. Yes, sir.

Q. He said, ‘Yes, the truck was still — I’m sorry — the truck was running still until some guy told him to cut it off.’ Was that the answer?

A. Yes, sir, it was.”

The basis for allowing plaintiff’s counsel to complete his cross-examination of the court reporter was stated by the trial court as follows:

“THE COURT: First, I believe that there is a basis for impeachment. The witness said there were no lights on the side of the truck. This appears to indicate that there were.

We have in the law regarding statements used for impeachment a principle known as the rule of completeness, where it is indicated where part of the statement is used for impeachment, if there are further questions on the same proposition which may shed light on that same general area, they can be brought out on redirect as part of rehabilitation.

I do not agree with defense counsel that there is anything prejudicial or speculative about the question that would be— that would prevent the words, ‘and normally there should be lights on the top.’ If the witness is talking about seeing — that there is any basis in fact that the tankers normally or trucks normally have lights on the top, and that’s what he’s saying here, I don’t think it’s prejudicial, and particularly because the rest of his answer about this not having — it partially explains the impeachment.

In other words, it didn’t have lights on the top, but it did on the bottom and so on. So it does help explain somehow, and I will not — I will hold that it is properly before the jury.

They can reasonably conclude that this is impeaching, and certainly, I will let them consider it for that purpose.

But I will under the rule of completeness allow you to ask a complete set of questions on the questions of lights even though whether he would — is familiar with tankers and knows there are lights on top might be a matter of speculation. But it is part of the complete answer, and I’ll let it in.”

I believe the trial court acted within the bounds of its discretion in allowing plaintiff’s counsel to complete his cross-examination of the court reporter. It is well established that if one party introduces part of an utterance or writing, the opposing party may introduce the remainder or so much thereof as is required to place that part originally offered in proper context so that a correct and true meaning is conveyed to the jury. (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 556 , 356 N.E.2d 779, 786 .) Also, the admission of such evidence is within the discretion of the trial court. (Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 413 , 496 N.E.2d 1116, 1122 .) Here, the record does not demonstrate that the trial court abused its discretion.

I believe it is plain that it was within the trial court’s discretion to allow plaintiff to put into evidence the complete statement of Anwar Younan to show that, when placed in its complete context, the statement indicated that there were no lights on the top of the Arco tanker. I therefore disagree with the majority that the trial court erred in allowing plaintiff to put into evidence the complete statement of Anwar Younan.

The majority next claims that the trial court committed error “when it allowed plaintiff’s counsel to impeach the medical witnesses using materials that were not established as authoritative.” The majority relies upon the authority of Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326 , 211 N.E.2d 253 . The obvious errancy in what the majority has to say on the subject is that it is simply not applicable to this case. Plainly Darling is not applicable here.

The majority first refers to two occasions during the cross-examination of Dr. Yuksel Konacki. The record reflects that the following occurred on the two occasions:

“Q. If I understand you, then, correctly, if we took the three people that we talked about before, all right, and you gave them five beers, that would get them up to .155?

A. Well, remember it was between five and six one after the other.

Q. All right. One right after the other and the three people, one 16 years old, one who had been drinking all of their [sic] life and a person who is just a social drinker, you’re saying that in your opinion all three people at .155 would be affected about the same; is that correct?

A. You can predict that all three that there would be certain changes, and it is possible that one might be slightly more affected than the other. But in all three, you can have certain prediction of change.

Obviously, no two people in the world are going to have ex- ■ actly the same reaction. But when .155 is achieved, then you can predict well that certain changes will occur.

Q. Would you agree with this statement, sir — .

MR. KARNES: Objection, your Honor. Absent identification of the document to have him put through to identify the—

THE COURT: Well, it can be done either one of two ways. One is the way you mentioned. The other is if you want to ask a general question but where it does not appear that you’re reading from a particular document, I’ll permit it, the understanding being that before you could ask him a specific question from the document, there has to be some foundation that there is an authoritative source.

So you can ask him a general question if he agrees with the proposition. But before you can use a particular document, you’d have to—

MR. FISHMAN: I’m just going to ask him this question.

THE COURT: Sure.

BY MR. FISHMAN:

Q. Doctor, do you agree with this proposition: ‘Individual differences in response and tolerance for alcohol vary so widely that one person may be incapacitated by less than the legal limit of alcohol goes while others show almost no response to a fairly high blood alcohol reading.’ Do you agree with that?

A. I agree with it only to the point of the visible changes that you might perceive in those individuals that, I repeat again, when you test the individual carefully, then there are repeated kinds of changes that you can predict, predictable changes.

And I’m referring now that what we went into in the past hour about the ability of some individuals over a time to camouflage the affect of alcohol on himself or herself.

Some people are very good at that. But if you test them carefully as to their fine motor control, then that whole camouflage system disappears and breaks down.

So the variation that you’re referring to is the ability of some people after drinking a lot over a long period of time to camouflage what the affects are.

Q. Well, then, do you agree with this statement: ‘Both an acquired tolerance for alcohol in individual genetic differences accounts for wide variations in response.’

MR. KARNES: Your Honor, you know my objection. Counsel is no longer paraphrasing but bringing up questions on his own and reading in the record when the doctor hasn’t proven it to be authoritative or offered it as authoritative.

THE COURT: No. Again, the situation is he may ask him general propositions. And as long as he doesn’t indicate that this is from some article or some authority, I will permit him to do so. So your objection is overruled.

MR. KARNES: Thank you, your Honor.

BY THE WITNESS:

A. The genetic differences here, I think, are referring to the fact that one can inherit a tendency from previous family, mother and father, of the desire to take the alcohol and maybe even the ability to camouflage the affects of it.”

Plaintiff’s counsel then moved on to another line of questioning.

The majority secondly refers to plaintiff’s counsel “cross-examining another medical witness.” Although the majority does not identify the other medical witness by name, his name is Dr. John Hughes. The record reflects that the following occurred with respect to the cross-examination of Dr. John Hughes and what is discussed by the majority:

“Q. Doctor, can you just tell the Court and jury what the word ‘osmosis’ means?

A. It is a diffusion of the fluids through the membranes in the body.

Q. Through the what?

A. Through the membranes.

Q. Through the membranes?

A. Through cell membranes.

Q. Okay. It’s — how does that happen?

A. There might be some diffusion of the fluids through the membranes.

Q. Now, if I understand correctly, if a person is dead, osmosis still goes on; is that right?

A. I don’t know, sir.

Q. Well, if a person is dead, and they have alcohol in the stomach, isn’t it correct, sir, that the alcohol will continue to go through the stomach wall into the surrounding cavity if there is liquid on the other side; isn’t that right?

A. I don’t know, sir.

Q. Isn’t it correct, sir — have you ever studied forensic science on postmortem examinations?

A. Yes.

Q. When you did — when the autopsy that was performed on the blood alcohol, that would be the blood alcohol that you got out of the body at the time you got the blood alcohol out of the body; is that correct?

A. I gave them that, the lab sample, the blood sample.

Q. The blood sample, though—

A. It was taken after death, sir, certainly.

Q. Sir, Doctor—

A. Yes, sir.

Q. —do you agree with this statement, fIf any alcoholic beverage is still present in the stomach during the time of death, it continues to diffuse into the adjacent tissues and organs from which it no longer is distributed throughout the body by circulating blood.’ Do you agree with that statement?

A. I don’t know, sir.

Q. You don’t know, okay. Would you agree with this statement? ‘With succeeding hours after death, blood drawn from such organs as the heart or any of its great vessels, if alcohol was present in the stomach when death occurred, will contain increasingly high levels of alcohol that are entirely unrepresentative of the level existing in the circulating blood.’

A. I don’t know, sir.”

As the record clearly shows, at no time during the cross-examination of Dr. Yuksel Konacki or Dr. John Hughes did plaintiff’s attorney mention the name of any article, book or other expert. Thus, the learned treatise doctrine relating to cross-examination of expert witnesses has no application here, and defendants’ objections were properly denied.

I agree with the trial judge and his ruling when he stated: “Again, the situation is he may ask him general propositions. And as long as he doesn’t indicate that this is from some article or some authority, I will permit him to do so. So your objection is overruled.” Moreover, the scope of cross-examination rests within the discretion of the trial court, and the trial court’s discretion should not be applied in a narrow or restricted manner with respect to experts who deal in opinions on matters normally not in the common knowledge and experience of laymen. (Muscarello v. Peterson (1960), 20 Ill. 2d 548, 554 , 170 N.E.2d 564, 568 .) Also, an exercise of discretion by the trial court on matters relating to cross-examination will not be disturbed on review unless there has been a clear showing of an abuse of discretion. (Martin v. Zucker (1985), 133 Ill. App. 3d 982, 988 , 479 N.E.2d 1000, 1004 .) Here, I do not find that the trial court abused its discretion during the cross-examination of Dr. Yuksel Konacki or Dr. John Hughes. Plainly, there is no clear showing of an abuse of discretion.

The majority next claims that the trial court erred with respect to plaintiff’s closing argument to the jury. The majority states: “In his summation, plaintiff’s counsel argued the passive alcohol diffusion theory, suggesting that the passage of blood through decedent’s stomach after his death led to a ‘false high’ blood alcohol reading. Defendants objected to plaintiff’s counsel’s statements but their objection was overruled.” The majority then concludes that “it was error for the trial court to allow plaintiff’s counsel to argue the theory in his closing arguments.” I disagree.

At trial, the jury heard evidence from witnesses who were with Knox on the night of his death. They testified that Knox consumed no more than two beers. The same witnesses also testified that Knox was not in any way impaired at the time he left Willie Ridley’s home. However, the jury also heard evidence consisting of a toxicology report stating that Knox’s blood-alcohol level taken after his death indicated a concentration of .155 with a bile-alcohol reading of .14.

To resolve the conflict in the evidence, plaintiff cross-examined witnesses called by the defense to show that the alcohol readings did not accurately reflect Knox’s consumption of alcohol immediately prior to his death. Plaintiff showed that although an accurate blood-alcohol analysis requires drawing blood from the heart, the pathologist could not recall the origin of the sample taken from Knox. The alcohol tests could also have been invalidated because of a rupture of the aorta which drained most of Knox’s blood from his major blood vessels into the thoracic cavities. Any of these errors may have resulted in an erroneous calculation of Knox’s alcohol concentration. In addition, Dr. Schaffer, the toxicologist, recognized that there is support for the belief that even after death, alcohol diffuses through the stomach. Although he did not subscribe to such an opinion, Dr. Schaffer stated: “Probably there are a number of people who believe that. I’m not exactly sure that I would agree necessarily with that statement.”

During plaintiff’s counsel’s closing argument, the following occurred:

“So when he died, there was alcohol in his stomach. Now, what does that mean? It means that the alcohol was in his stomach when he’s dead. Now, the question is, did the alcohol get out of the stomach — .

DEFENSE COUNSEL: Objection, your Honor.

THE COURT: This is argument. There may not be any direct evidence that there was alcohol in his stomach, but I suppose that he can argue that there was based upon the facts of what took place at the — prior to the accident.”

Plaintiff’s counsel then continued his argument by describing the theory, which Dr. Schaffer admitted has at least some support, that alcohol could have diffused from Knox’s stomach into his blood to produce false alcohol concentrations. No text was read to the jury by plaintiff’s counsel, and he did not argue anything that was not in evidence or a fair comment upon the evidence.

I believe it is plain that when it came time for the plaintiff and defendants to argue their cases to the jury, the jury was faced with legitimate conflicting evidence and theories. On behalf of the plaintiff, there was testimony of witnesses who were with Knox on the night he died, who stated that Knox was not the least bit impaired from having consumed only one to two beers. From the physical facts of the accident as reconstructed by Thad Aycock, the consultant to the Accident Investigation Division of the Northwestern University Traffic Institute, Knox was only 145 feet from the collision when the tanker truck pulled out from a stop sign in front of Knox and blocked Busse Highway. Moving at 45 miles per hour, Knox slammed on his brakes, laying approximately 50 feet of skid marks, and he attempted to move to his left to avoid the tanker truck, but Knox had no opportunity to avoid the collision, which occurred 2.5 seconds from the time the truck pulled out onto Busse Highway. On behalf of the defendants, there was the postmortem protocol which provided that Knox had a blood-alcohol concentration of .155 at the time the postmortem examination was made.

Given the questions raised through the crucible of cross-examination of defendants’ witnesses as to the reliability of the postmortem protocol, two different theories exist as to whether the postmortem protocol truly showed the alcohol concentration in Knox’s blood immediately prior to his death. Both plaintiff and defendants had the right to argue their respective theories and interpretation of the facts and circumstances to the jury. That is what was done.

The arguments that were made by plaintiff’s attorney and defendants’ attorney were fair and subject to the discerning and keen intellect of a commensal cross-section of the community who sat as the jury. In reaching their verdict, the jurors applied their intellectual perceptions to all the evidence in light of their own observations and experiences in the affairs of life. I believe that the majority’s conclusion that the plaintiff’s attorney’s argument was unfair and that both the trial judge and the jury were wrong in what they did constitutes a usurpation of the functions of the trial court and the jury.

Perhaps the most glaring mistake made by the majority, in my opinion, relates to the next issue discussed by the majority. On the issue of the amount of the verdict, the majority states: “We also agree [with defendants] that the $2 million award was excessive.” The majority also states: “Although this evidence served to buttress the presumption that decedent’s parents suffered substantial pecuniary loss upon the death of their child [citations], we do not believe that it provided a sufficient basis for the jury’s verdict for $2 million. Given the lack of any evidence to support an award of this size, we must conclude the amount of the award indicates that it was the result of passion and prejudice. In conclusion, we find that because it would be impossible to state that the errors occurring at trial did not affect both the amount of the jury’s award and its allocation of negligence, the judgment must be reversed and the cause remanded for a new trial.” I disagree.

The jury returned a verdict in favor of the plaintiff for $2 million and found that “the percentage of negligence that was a proximate cause of plaintiff’s death or damages attributable solely to the plaintiff is 10%.” Accordingly, the amount of recoverable damages awarded by the jury is $1,800,000.

The decedent was born in 1951, received “good grades all the way through high school,” and he “went to college for a couple of years.” At the time of his death, he was employed by Household Finance, earning between $25,000 and $30,000 a year. His health was excellent. The decedent, who was described as “ambitious” and a “very happy person,” maintained a relationship with his parents “through telephone calls, writing, coming home and all that.” The decedent’s father testified that his son’s death meant that he “lost a friend, a loved one,” and that he lost the support that he “would have in case, you know, if I should happen to need it.” The decedent’s mother stated that she lost “everything a person would want in a son.” She testified that her son was “someone to talk to and someone to love.” During the time that the decedent’s sister was attending Creighton University in Omaha, Nebraska, the decedent contributed approximately $50 a week toward her support. This latter fact evinces the filial support the decedent’s parents expected from him.

When a decedent leaves parents, the law recognizes a presumption that the parents have sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for the jury to decide from the evidence in the case. (Illinois Pattern Jury Instructions, Civil, No. 31.06 (2d ed. 1971).) In terms of loss of society, which is involved in this case, society is defined as the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection. (Drake v. Harrison (1987), 151 Ill. App. 3d 1082, 1087-88 , 503 N.E.2d 1072, 1076 .) These principles of law were given to the jury in the form of jury instructions. Moreover, all of the jury instructions were tendered and given on behalf of defendants.

Plainly, the observations and experiences in the affairs of life of reviewing court judges cannot take precedence over those of the jury when it comes to determining how much money is reasonable compensation for the presumption of pecuniary loss for the death of a son. Nor can the observations and experiences in the affairs of life of reviewing court judges take precedence over those of the jury when it comes to determining how much money is reasonable compensation for the loss of love, affection, care, attention, companionship, comfort, guidance and protection that the parents of a son suffered as a result of his wrongfully caused death. Yet, in the present case the majority has arrogated to itself the right to usurp what the jury determined on both issues.

In addition, it must be noted that the defendants introduced no evidence whatsoever to rebut the presumption of substantial pecuniary loss and the loss of society. Nor did the defendants make any argument to the jury concerning damages. Also, the jury was accurately instructed on the law based upon instructions tendered by the defendants. Thus, it is clear that there is no error as to evidence, argument or law relating to the presumption of substantial pecuniary loss or the loss of society in this case.

The majority states that “the amount of the award indicates that it was the result of passion and prejudice.” However, the majority does not make any textual discussion about passion or prejudice relating to the amount of the award. The majority’s statement is merely an ipsi dixit assertion. I believe that the majority simply disagrees with the jury on the amount of the award. The majority is entitled to disagree with the jury, but that does not give the majority the entitlement to disturb the decision of the jury.

Next, the majority concludes that “because it would be impossible to state that the. errors occurring at trial did not affect both the amount of the jury’s award and its allocation of negligence, the judgment must be reversed and the cause remanded for a new trial.” I know of no other reviewing court panel that has set an “impossible to state” no affect standard for reviewing courts when examining whether trial errors may have affected the amount of a jury’s award or its allocation of negligence. The standard to be applied for a reversal and new trial because of trial errors is that the reviewing court must affirmatively conclude that there were trial errors which operated to the prejudice of the appellant or “unduly affected” the outcome below. (Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 817 , 364 N.E.2d 650, 656 .) Plainly, that standard cannot be met here. Moreover, in order for a reviewing court to reverse a jury’s determination of plaintiff’s percentage of comparative negligence, the verdict must be against the manifest weight of the evidence. (Lowe v. Kang (1988), 167 Ill. App. 3d 772, 782 , 521 N.E.2d 1245, 1251 .) Here, the majority never even discusses whether the jury’s verdict allocating 10% of the fault of the accident to the decedent is against the manifest weight of the evidence. I do not find that the jury’s verdict allocating 10% of the fault of the accident to the decedent is against the manifest weight of the evidence.

Lastly, the majority states that “the jury’s allocation of only 10% comparative negligence to decedent may have been the result of the improper conduct of plaintiff’s counsel and the trial court’s failure to control that conduct.” I disagree with the premise and the conclusion. This case involved a trial that was hard fought on both sides. The trial may not have been perfect, but it was fair. There was no improper conduct by plaintiff’s counsel, and to say that the trial court failed to control the conduct of either counsel is wrong. The record plainly demonstrates that the trial court controlled the conduct of both counsel and gave both sides a fair trial. The trial court should be commended, not reversed.

Accordingly, I would affirm the judgment of the trial court.

ADDENDUM

This dissent was filed in response to the majority opinion as it was originally filed before it was modified on rehearing. At that time, Justice Freeman agreed with everything that Justice White included in the majority opinion, including “the alleged excessiveness of the damages awarded in the case,” since Justice Freeman concurred and did not file a specially concurring opinion. The original opinion in which Justice Freeman concurred and my dissent were filed on November 22, 1989. After a petition for rehearing was filed, as the order entered today provides, I voted to grant the petition for rehearing and Justices White and Freeman voted to deny the petition; also, the modified majority opinion and Justice Freeman’s specially concurring opinion were filed. I do not believe that anything contained in the specially concurring opinion has sufficient merit to warrant a response.