Told v. Madison Building Co. , 216 Ill. App. 29 ( 1919 )

Mr. Justice Gridley

delivered the opinion of the court.

It is first contended by defendant’s counsel that the trial court erred in not directing a verdict for defendant. The argument is, as we understand it, that Dr. George E. Taylor was a tenant of defendant under written lease to a portion of a suite of rooms on the ninth floor of the building to be occupied as a dentist’s office; that by the express terms of the lease he was not to sublet the premises or any part thereof, and was not to permit the use of the premises by any others than himself, his agents and servants; that in violation of the terms of the lease, Dr. Taylor made an arrangement with plaintiff whereby he either subleased to her, or permitted her to use and occupy at certain stated times each day, a portion of said premises wherein she could practice her profession; that under these circumstances plaintiff, not being a tenant of defendant and not coming into the building by defendant’s invitation, express or implied, but occupying space in the building wrongfully and in direct opposition to the expressed desires of defendant, was no more than a mere licensee, and defendant owed her no duty other than not to wantonly or wilfully injure her; that under all counts of plaintiff’s declaration a recovery was not sought on the theory that she was a licensee but on the theory that defendant owed her the duty to exercise ordinary care for her safety; that the proof did not establish any wanton or wilful injury; and that, hence, under tie pleadings as well as the proof plaintiff had not made out a case. We cannot agree with all of the argument or with the conclusion of counsel. We think that the evidence tended to show that defendant, at the time of the accident and prior thereto, knew that plaintiff was occupying an office in the building and had impliedly consented to such occupancy. She made her first arrangement with Dr. Taylor in June, 1910. Her name was then placed on the outer door of said suite of offices, where it had remained for more than 4 years up to the time of the accident. She was known to the superintendent of the building, the engineer, the elevator starter, the operator of the elevator, in whose car the accident occurred, and a janitor of the building, and plaintiff’s occupancy was open and evident. For aught that appears to the contrary, defendant made no objections to such occupancy during all of the period. By the terms of Dr. Taylor’s lease such occupancy was a technical violation of a covenant of the lease, and defendant, if it had objections, could have taken advantage of clause 10 of said lease which provided for the termination of the lease at defendant’s option, in case of default in respect to any of the covenants, but defendant did not do this. We think it was for the jury to say, under all the circumstances in evidence, whether plaintiff was rightfully occupying her office and with the implied assent of the defendant. (Reynolds v. John Brod Chemical Co., 192 Ill. App. 157; Illinois Cent. R. Co. v. Hopkins, 200 Ill. 122; Purtell v. Philadelphia & R. Coal & Iron Co., 256 Ill. 110; Peaks v. Cobb, 197 Mass. 554.) Furthermore, we think that the evidence tended to show that plaintiff was rightfully on the elevator as a passenger, and defendant in such case was required to exercise at least a high degree of care and diligence not to injure her. (Springer v. Ford, 189 Ill. 430; Steiskal v. Marshall Field & Co., 238 Ill. 92.) And we think that the additional count as amended, if not the other counts as amended, was sufficient after verdict to support a judgment in plaintiff’s favor. (Steiskal v. Marshall Field & Co., supra. )

It is next contended that the trial court ■ erred in sustaining plaintiff’s demurrer, to defendant’s plea of the statute of limitations to the amendment to the first-three counts of the declaration, and to the amendment to all counts thereof, all of which amendments were filed in February, 1918, more than 2 years after the accident. It is urged that a new and different cause of action was stated. We do not think so. As to the amendment to the first three counts, the change from the allegation that plaintiff was a “tenant in said building” to that plaintiff had an “arrangement or agreement with a tenant of said building,” whereby she was entitled and permitted to occupy and use an office in the space leased by said tenant, does not seem to us to be altogether new and different. In the general use of the term, “tenant,” she could be considered as a tenant in the building under the language of the amendment. As to the amendment to all counts, by adding the statement as to her falling down the elevator shaft to the allegation of her being crushed between the elevator and gates and “some part of the structure adjacent thereto,” we think this is merely a restatement of the same cause of action, and is not open to the defense of the statute. (Devaney v. Otis Elevator Co., 251 Ill. 28.)

It is further contended that the verdict is against the manifest weight of the evidence. It is strenuously argued that the physical facts and the clear weight of the testimony show that the accident could not have occurred as claimed by plaintiff, that when the elevator car started the gates were closed, that the defendant was not negligent, that plaintiff evidently moved too close to the gates so as to permit her umbrella to get caught when the elevator started to ascend, and that her negligence was the proximate cause of her injuries. After a careful consideration of all the evidence we are unable to say that the verdict is manifestly against the weight of the evidence.

It is further contended that the trial court erred in admitting certain testimony of plaintiff’s expert witness, Dr. Heym, in that (1) he was allowed over objection to express an opinion as to plaintiff’s future condition, which opinion was based partly on subjective symptoms occurring in examinations made by him after the beginning of the suit; and (2) was allowed over objection to state that it was “extremely probable” that she would finally suffer from epilepsy, which statement was speculative and incompetent, and .was clearly prejudicial to defendant because of the reference made to it by plaintiff’s attorney in his argument to the jury. Appropriate motions were made by defendant’s attorney to strike out said testimony, but the motions were denied. What was said during the examination of the witness and during the argument of plaintiff’s attorney to the jury is set forth above in the statement of the case. We think the trial court erred in both particulars as claimed by defendant’s counsel. As it seems to us, periods of 15 or 20 minutes of “not comprehending,” being “mentally dull,” etc., on the part of plaintiff, are subjective symptoms, notwithstanding the expressed opinion of the witness to the contrary. They “could have been purely voluntary and under the control of the injured party.” (Greinke v. Chicago City R. Co., 234 Ill. 564, 573.) And these periods were after the beginning of the suit. Declarations of the injured party “are only competent when made as a part of the res gestee, or to a physician during treatment, or upon an examination prior to and without reference to the bringing of an action to recover damages for the Injury complained of, unless the examination should be made at the instance of the defendant, with a view to the trial.” (West Chicago St. R. Co. v. Carr, 170 Ill. 478, 483; Chicago Union Traction Co. v. Giese, 229 Ill. 260, 266; Greinke v. Chicago City Ry. Co., 234 Ill. 564, 570.) And they should be free “from all suspicion of being spoken with reference to future litigation.” (Illinois Cent. R. Co. v. Sutton, 42 Ill. 438, 440.) And the same rule has been applied to certain outward manifestations within the injured party’s control. (Greinke v. Chicago City Ry. Co., 234 Ill. 564, 572.) Furthermore, that the examinations of plaintiff by the witness were made for the treatment of her is negatived, for the witness testified: “I gave her. general advice as to what she should do. I didn’t give her any treatment at all.”

As to the second point urged relative to the testimony of the witness, it appears that he stated on direct examination that “there is great danger that some special condition might develop,” then, that “this periodicity points in the direction of an epileptic condition,” then, that there is a reasonable certainty “that that condition might develop into an epileptic condition,” all of which statements were striken out, and we think properly. Then the witness finally said, on direct examination, that there is a “ reasonable certainty” that “epilepsy will develop.” Then, on cross-examination, he stated “we can’t look into the future”; (motion to strike the previous answer overruled) then he stated “I can’t look into the future, and for that reason cannot say whether she will have epilepsy; her present condition makes it extremely probable that she will finally suffer from epilepsy; * * * that’s all we can say; nobody can see into the future and tell what will happen.” (Motion to strike said previous answer out again overruled.) We think that the entire testimony of the witness showed that there was not, in his opinion, a “reasonable certainty” that epilepsy would develop, but only that it was probable. It is true the witness said ‘ extremely probable, ’ ’ but that statement was immediately thereafter qualified. And we think that the testimony was speculative and incompetent, and that the court should have granted defendant’s motions to strike. “Expert witnesses can only testify or give their opinion as to future consequences that are shown to be reasonably certain to follow.” (Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, 76.) See also Lauth v. Chicago Union Traction Co., 244 Ill. 244, 251; Lyons v. Chicago City Ry. Co., 258 Ill. 75, 82; Strohm v. New York, L. E. & W. R. Co., 96 N. Y. 305, 306; Chambers v. Chicago City Ry. Co., 175 Ill. App. 362; Amann v. Chicago Consol. Traction Co., 243 Ill. 263, 267. For an expert witness to express an opinion that a certain condition “is very likely” to develop was held speculative and improper in the Strohm and Chambers cases, supra. In the Amann case, supra, it is said: “A mere possibility, or even a reasonable probability, that future pain or suffering may be caused by an injury, or that some disability may result therefrom, is not sufficient to warrant an assessment of damages.” The effect of the erroneous admission of the testimony in the present case was greatly emphasized by the remarks of plaintiff’s counsel to the jury and was, we think, prejudicial to defendant. We cannot tell what that effect was with reference to the amount of the verdict, as it is not susceptible of computation. (Lauth and Lyons cases, supra.) And, “whenever error is shown to exist it will compel a reversal unless the record affirmatively shows that the error was not prejudicial. ’ ’ (Crane Co. v. Hogan, 228 Ill. 338, 340; Kirby v. People, 123 Ill. 436, 439.) The present record does not so show.

Other grounds for reversal are urged by counsel for defendant, but it is unnecessary to consider them.

For the reasons indicated we feel constrained to reverse the judgment and remand the canse, and it is so ordered.

Reversed and remanded.