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Pink v. Dempsey





Appeal by plaintiff from the Superior Court of Cook county; the Hon. ALAN E. ASHCRAFT, JR., Judge, presiding. Heard in the second division of this court for the first district at the October term, 1952. Judgment affirmed. Opinion filed June 9, 1953. Released for publication June 30, 1953.


Millicent Pink, claimant, filed her claim in the probate court of Cook county, Illinois, in the estate of Edward A. Grossman, deceased, for all the assets of the estate. The claim was based upon an oral contract with the decedent to leave a will giving claimant all his property in consideration of personal services performed by her. The claim was disallowed by the probate court, and an appeal was taken to the superior court of Cook county, where, pursuant to statute, a trial de novo was had and the issue submitted to a jury. The jury returned a verdict, disallowing the claim, and judgment was entered thereon by the court.

The estate was of the net value of approximately $48,000. The services alleged to have been performed for decedent commenced in 1945 and continued until his death on November 19, 1949. At that time he was 53 years old, and had been engaged in selling neckties at wholesale. He is described by claimant's only witness as an ailing, lonely bachelor, much in need of the kindly personal services which claimant was able to render. According to the testimony for claimant she was constantly in the company of decedent, cooked his meals, spent week ends with him, tidied up his clothes, and induced some correction of his unpleasant habits. Her witness also testified to conversations with the decedent relating to the alleged agreement to convey all his property to claimant, and to arrangements for and promises of marriage.

As against this, the estate produced the testimony of many witnesses which put decedent in quite a different light. He is there pictured as a jovial man, seeking the company of the opposite sex, and apparently quite successful in the cultivation of that companionship whenever he desired it. It is shown that between 1945 and 1947, decedent was engaged to a Mrs. Rae Lurie; that this engagement was broken in 1947; that he then kept company with another woman in 1948, and with another in 1949; that in 1946 he bought his finance a car as an engagement present, and otherwise was quite cavalier and generous in his attentions to the ladies. Suffice it to say that the proof was sufficient to present an issue for the jury, and that the verdict cannot be disturbed unless there was an error in the ruling of the court.

Claimant was allowed to testify only within the restricted field permitted by section 2 of the Evidence Act, that is, to rebut the testimony of witnesses on behalf of the estate who had testified to conversations with her sharply controverting the basis of her claim. The court held that she was disqualified under section 2 of the Evidence Act from testifying generally. About one year prior to the trial of the cause in the superior court, the estate took the pretrial deposition of the claimant and interrogated her as to all phases of her claim. In this deposition claimant set forth specific names, dates, and events in support of her claim. This pretrial discovery deposition was had pursuant to section 58 of the Civil Practice Act and Rule 19 of the Rules of the Supreme Court [Ill. Rev. Stats. 1951, ch. 110, §§ 182, 259.19; Jones Ill. Stats. Ann. 104.058, 105.19]. It was not filed, offered or put in evidence on the trial of the case, but claimant contends that, nevertheless, it constituted a waiver pro tanto of her disqualification as a witness. As the deposition covered all the details of claimant's case, this would amount to a complete waiver of incompetency. On the other hand, the estate contends that the examination of an adverse party on a pretrial discovery deposition is not the calling of such party as a witness; that a deposition, like any other statement of a witness, may be used for purposes of impeachment, admission or to refresh the memory of a witness, but is not otherwise evidentiary, and therefore, the disqualification is not waived. The trial court sustained the position of the estate. It is this ruling of the court which constitutes the principal assignment of error in this court.

The issue here turns essentially on the construction of sec. 2, par. 2, ch. 51, Illinois Revised Statutes (1951) [Jones Ill. Stats. Ann. 107.068] known as the "deadman's" statute. This provides in substance that "No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion . . . when any adverse party sues or defends . . . as the executor, administrator, heir, legatee or devisee of any deceased person . . . unless when called as a witness by such adverse party so suing or defending. . . ." When the discovery deposition was taken and claimant was examined pursuant thereto, was she thereby "called as a witness" by such adverse party? No decision of our Supreme Court has directly passed upon this question. In Chapman v. Bruton, Inc., 325 Ill. App. 334 (not published in full) occurs the following paragraph:

"Jacob S. Bruton is one of the defendants. He was examined prior to the trial by the plaintiff under Section 60 of the Illinois Civil Practice Act. Appellants contend for that reason that his disqualification under Sections 1 and 2 of the Evidence Act was removed. We do not accede to such contention, and believe that the trial court did not err in refusing to permit him to testify in his own behalf in regard to matters just before and during the collision. Garrus v. Davis, 234 Ill. 326, 330; Blumb v. Getz, 294 Ill. App. 432."

Section 60 [Ill. Rev. Stats. 1951, ch. 110, § 184; Jones Ill. Stats. Ann. 104.060] does not apply to pretrial depositions, and we do not know whether the examination was on a pretrial deposition or was an examination at the time of trial under section 60. In either event, the case constitutes a firm decision that disqualification is not waived by a pretrial examination. In a case before the Circuit Court of Appeals for the 7th Circuit, Wasserman v. Darr, 11 Fed. Rule Service 577 (1948), plaintiff had been examined at a pretrial discovery under Rule 26 of the Federal Rules of Civil Procedure. The deposition was on file in the proceeding. The court, citing Chapman v. Bruton, supra, held that the mere taking of such a deposition does not constitute a waiver of incompetence.

While the Chapman case is the only decision directly in point on the question, there are Illinois cases construing the language of the "deadman's" statute as it may relate to pretrial depositions. These hold that the taking of a deposition before trial does not constitute "calling" the party as a witness, within the meaning of the "deadman's" statute. They draw a sharp distinction between a pretrial deposition and the trial itself. Winger v. Chicago City Bank & Trust Co., 325 Ill. App. 459; Smith v. Billings, 177 Ill. 446. In both cases depositions had been taken before trial, and thereafter the adverse party died. The depositions were excluded as evidence on the trial. The question of waiver was not present, since the deceased had been alive at the time of the taking of both depositions. But an interpretation of the same language of the Evidence Act was in issue; that is, had the adverse party been "called" as a witness. The courts in both cases pointed out the difference between pretrial proceedings and the trial itself. In Smith v. Billings, supra, the court said, p. 451:

"The language of the Supreme court of Iowa in Quick v. Brooks, 29 Iowa 484, clearly expresses the rule by which the competency of testimony under section 2 must be tested. It is there said: `Within the meaning of this statute, when did plaintiff testify? At the time his deposition was taken, or at the time of its use on the trial? We clearly think the latter. . . .'"

In the Winger case, supra, the court said, p. 492:

"We feel that section 2 refers to evidence upon the trial of a cause. If a deposition of an interested witness is taken prior to the trial and one of the parties to the cause dies prior to the deposition being read in evidence, we are of the opinion that in so far as the testimony in the deposition affects the deceased it is inadmissible upon the trial of the cause. The taking of a deposition is not a trial of a cause when offered upon the trial of the cause, it is a substitute for the testimony of the person who made the deposition."

Pretrial discovery is designed to permit exploration and to avoid surprise. It is like a proceeding for the filing of interrogatories, or, perhaps, a comprehensive bill of particulars. It is directed toward making the judicial process one of determining the facts appertaining to the issue and rendering a just decision thereon, rather than the promotion of a battle of wits between counsel. In actual practice, it is often taken for granted that there will be discovery depositions by both sides, and the broadest range of examination is permitted, very often without objection and on a quite informal basis (there being no one present who could rule). The parties rest secure in the belief that neither side will lose any rights and that the deposition will not be presented in evidence, except as an admission or by way of impeachment. Hence, the principle of the case of Winger v. Chicago City Bank & Trust Co., 325 Ill. App. 459, and Smith v. Billings, 177 Ill. 446, a fortiori applies to discovery depositions taken before trial.

Other jurisdictions which have upheld the same principle are the following: DeLaurent v. Townsend, 243 N.Y. 130, 152 N.E. 699 (1926); Bambauer v. Schleider, 176 App. Div. 562, 163 N.Y. Supp. 186 (1917); Farmers Loan & Trust Co. v. Wagstaff, 194 App. Div. 757, 185 N.Y.S. 812 (1921); Maldaner v. Smith, 102 Wis. 30, 78 N.W. 140 (1899); Norman v. Kernan, 226 Wis. 78, 276 N.W. 127 (1937); Starkweather v. Conner, 44 Ariz. 369, 38 P.2d 311 (1934); Prince v. Abersold, 123 Ohio 464, 175 N.E. 862 (1931); and Clayton v. Ogden State Bank, 82 Utah 564, 26 P.2d 545 (1933). In the case last cited, Clayton v. Ogden State Bank, supra, the statute involved wording similar to ...

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