DISSENTING OPINION MODIFIED UPON DENIAL OF REHEARING
PRESIDING JUSTICE SULLIVAN,dissenting:
The reversal by the majority is based on findings (a) that reversible error occurred when certain testimony of Doctors Eigkelboom and Newman was refused and (b) that defendant was denied a fair trial by the exclusion of testimony of other defense witnesses. I disagree with both findings, and I would grant plaintiff’s petition for rehearing.
Regarding the holding that the trial court committed reversible error in refusing to admit certain testimony from the two doctors, it is the position of plaintiffs that the trial court properly held the refused testimony to be irrelevant because it concerned conduct of Nardi taking place prior to his becoming a passenger on defendant’s plane and before defendant owed him any duty of care. The majority, however, held that the refused testimony should have been admitted because defendant had a “right to show Nardi’s physical condition and his medical treatment before the flight as evidence of his contributory negligence.”
We note initially that the cases cited by the majority do not support this holding. In all of them, an accident was involved, and it was held in each that testimony as to plaintiff’s conduct before the accident was admissible on the issue of contributory negligence. In the instant case, however, we have held that there was no accident and while, as stated in those cited cases, evidence of contributory negligence prior to but related to an accident could be admissible, the action here is based upon the alleged breach by defendant of its contractual duty as a common carrier to exercise the highest degree of care toward its passenger, Nardi. It therefore appears to me that the refused testimony of the doctors concerning conduct of Nardi before he became a passenger was properly found irrelevant to what I perceive the issues to be: namely, whether defendant breached its duty of care which arose after Nardi became a passenger and whether Nardi exercised ordinary care for his own safety after becoming a passenger.
Moreover, it is noted that the majority stated that the issue of appeal was “American Airlines’ right to show Nardi’s physical condition, his awareness of his physical condition, and his medical treatment before the flight as evidence of his contributory negligence.” It is difficult to understand why the majority makes this statement as no such issue was raised. Defendant makes no contention or argument that it was deprived in any manner of its right to show Nardi’s physical condition, his awareness thereof, and his medical treatment before the flight and, in fact, it could not do so because the jury was fully informed thereof. In his opening statement plaintiffs’ counsel discussed in considerable detail Nardi’s physical condition from his first hospitalization in 1972 until his death, including his care and treatment by the doctors in Acapulco, one of whom was Eigkelboom. Mrs. Nardi also testified as to her husband’s physical condition while in Acapulco, in-eluding the examination and treatment by Dr. Eigkelboom and other doctors. The record further discloses that except for the excluded portion in question, the evidence deposition of Dr. Eigkelboom, a defense witness, was read by defendant’s counsel to the jury (it comprised 37 pages of the record). In it he testified at length concerning Nardi’s physical condition at the time of his examination in Acapulco before the flight in question and opined that he had heart failure caused by an infarction. Dr. Newman also gave considerable testimony concerning Nardi’s physical condition during the course of his treatment from December 1972 up to the time he left Chicago to go to Acapulco.
The contention actually raised by defendant is that “it was error for the court to exclude the testimony of Dr. Eigkelboom and Dr. Newman on the warnings each gave to Nardi about flying” and, in this regard, the majority made the following finding and ruling: “the advice and warnings that Doctors Eigkelboom and Newman gave Nardi before the flight and Nardi’s rejection thereof was admissible to show Nardi’s alleged contributory negligence. ***. The trial court’s exclusion of this testimony was reversible error.”
However, no advice or warning was given to Nardi about flying by either doctor. Dr. Newman stated only that in a call from Mexico he was told that Nardi was not well and he said that Nardi should see a doctor there and then Newman made the following garbled statement: “if he says you are ókay, I said, or not that good, get back here.” Nowhere in his testimony does Dr. Newman say or give any warning that Nardi should not travel unless he had the permission of a doctor. The substance of his testimony was that if Nardi wanted clearance to travel he would have to get it from a local doctor (in Acapulco) as he (Newman) “cannot make medical clearance for the man who was a thousand miles away.”
In the excluded portion of the deposition testimony of Dr. Eigkelboom, who examined Nardi in Acapulco, he stated that his recommendation of laboratory tests was not accepted by Nardi and that he also recommended that Nardi “don’t can travel too.” The majority suggests that the quoted phrase was a warning that he shouldn’t take the flight in question because of his physical condition. However, the doctor did not so state and gave no indication that this was his opinion. In fact, he was not asked whether Nardi could or could not fly, and it is more reasonable to believe that he wanted the tests before Nardi traveled anywhere so that he could complete his diagnosis, which it appears he would have to do before he could have given an opinion as to whether or not Nardi could fly.
In any event, there was no advice or warning to anyone by either doctor that Nardi’s physical condition was such that he should not take the flight in question, and it is noted that no other doctor gave any such testimony. To the contrary, two physicians who examined Nardi while the plane was delayed in Mexico City, Dr. Penechay at the airport clinic and Dr. Miller, a passenger on the plane, both said that he was able to continue the flight to Chicago. It is thus clear that there is no basis in the record for the holding of the majority that the exclusion of the two doctors’ testimony was reversible error.
Furthermore, even assuming that the conduct of a person prior to becoming a passenger could be admissible as bearing on contributory negligence, the excluded testimony was properly refused here because there was nothing in that testimony which could be considered a proximate or contributing cause of his death. In the original majority opinion it was held that the excluded testimony should have been admitted because “defendant had the right to show that Nardi’s conduct before the flight contributed to his death,” but in the modified opinion that quote is deleted and in it the majority states only that the testimony was admissible to show contributory negligence on the part of Nardi. However, not considered or mentioned in either opinion is the fact that for any conduct of Nardi to be admissible under the doctrine of contributory negligence, it must have been a proximate or contributing cause of his death. See Mock v. Sears, Roebuck & Co. (1981), 101 Ill. App. 3d 103, 427 N.E.2d 872; Hiller v. Harsh (1981), 100 Ill. App. 3d 332, 426 N.E.2d 960; Old Second National Bank of Aurora v. Baumann (1980), 86 Ill. App. 3d 547, 408 N.E.2d 224.
Here, the most that may be gleaned from the portion of Dr. Eigkelboom’s testimony that was refused is that he wanted hospital laboratory tests and recommended to Nardi that he “don’t can travel,” and the most that may be said of Dr. Newman’s excluded testimony is that Nardi was informed that if he wanted clearance to fly to Chicago he should obtain it from a local doctor in Acapulco. It is significant that Dr. Eigkelboom did not say nor does his refused testimony even remotely indicate that the failure to have the laboratory testing in any way caused or contributed to Nardi’s death. He was not asked his reason for telling Nardi that he “don’t can travel too” and he made no statement and gave no opinion that Nardi’s physical condition was such that he should not fly. Likewise, Dr. Newman did not say, and his testimony also does not remotely indicate, that the failure to obtain permission to fly was in any manner a proximate or contributing cause of Nardi’s death. To the contrary, as noted above, the only doctors who were asked, Penechay and Miller, both stated that he was physically able to fly on to Chicago. Thus, because there was no showing that the excluded testimony concerned any conduct of Nardi which was a proximate or contributing cause of his death, it was properly excluded for that additional reason.
I disagree also with the finding of the majority that the exclusion of certain testimony of other defense witnesses denied defendant a fair trial. The majority states that their testimony should have been received under the admissions exception to the hearsay rule, but its opinion does not state what Nardi is supposed to have admitted and, in fact, there were no admissions by Nardi in the excluded testimony. The most that may be learned therefrom is that the witnesses would have testified that Nardi did not want to leave the plane and was adamant about going to Chicago. However, there were other witnesses, including Whitehead, the pilot in command, who testified that Nardi insisted on going to Chicago and still others who testified that Nardi said he did not want to leave the plane. The excluded testimony being cumulative, no prejudice was caused to defendant, and it was not thereby deprived of a fair trial. See O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 364 N.E.2d 533.