dissenting:
I would reverse and remand for a new trial.
The argument of plaintiff’s counsel was in my opinion, designed to appeal to and incite such prejudice as deprived the defendant of a fair trial. It included accusations of improper motives, lack of integrity, dishonesty and deceit, and comparisons to communistic attacks, and criminals who do not take the witness stand in their own defense, misstating the law with reference to inferences that may be drawn from the failure of an accused to testify on his own behalf. In order to further incite the jury’s prejudice, in a case where the claimed injury occurred as a result of the defendant’s negligence in covering a hole in the yards, and the injury did not occur in escaping the wheels of a train, counsel inferred that the mishap of stepping on a loose board might have resulted in plaintiff’s legs being cut off, and speculated as to the number of future injuries of that nature which defendant might inflict on its employees. As we said in Vandaveer v. Norfolk & W. R. Co., 78 Ill App2d 186, 208, 222 NE2d 897, 907, where we adopted the language of Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 122, 126 NE2d 731, 735:
“. . . The constitutional right of a trial by jury is not a license to counsel to indulge in abusive and prejudicial conduct to gain a verdict, nor does it grant any privilege to embarrass, belittle and abuse an adversary before a jury to such an extent that the hope of the adversary to obtain respectful consideration at the hands of the jury is destroyed or seriously jeopardized.”
The impropriety of such argument is not erased by sustained objections. Underwood v. Pennsylvania R. Co., 34 Ill2d 367, 215 NE2d 236.
SUPPLEMENTAL OPINION UPON DENIAL OF PETITION FOR REHEARING
GOLDENHERSH, P. J.Plaintiff has petitioned for rehearing and relying upon Keystone Steel & Wire Co. v. The Industrial Commission, 42 Ill2d 273, 246 NE2d 228, argues that we erred in holding portions of Dr. Ford’s report to be inadmissible.
Our conclusion that a report under Supreme Court Rule 215 is distinguishable from one made under section 138.12 of the Workmen’s Compensation Act (c 48, § 138.12, Ill Rev Stats 1967) emanates from the differences between the rule and the statute, and does not depend upon whether the physician treated, or merely examined, the plaintiff.
Under the statute, the examination, upon request, is mandatory, under the rule it is discretionary with the trial court; under the statute, the employer, already under a duty to provide medical treatment (138.8(a)), selects the examiner, under the rule the party seeking the examination may “suggest” the physician; the rule provides a means of discovery of information not otherwise available, while the statute provides for the employer, already under a statutory obligation to furnish medical treatment and therefore, possessed of knowledge with respect to the employee’s condition, a method of obtaining an opinion as to the nature, extent and probable duration of the injury and the amount of compensation due.
After careful consideration of plaintiff’s contentions, we adhere to the opinion, and the petition for rehearing is denied.
MR. JUSTICE MORAN dissents, being of the opinion that under Keystone Steel & Wire Co. v. The Industrial Commission, 42 Ill2d 273, 246 NE2d 228, the evidence was properly admitted.