Writ of Error to the Superior Court of Cook county; the Hon.
DANIEL A. COVELLI, Judge, presiding. Reversed.
JUDGE FEINBERG DELIVERED THE OPINION OF THE COURT.
Plaintiff in error, a member of the bar, appeals from an order finding him guilty of direct contempt of court and assessing a fine of $100 against him.
The finding of contempt is predicated upon his refusal to comply with a verbal direction of the court to produce a photostatic copy of a witness's statement. There was on trial before the court a personal injury suit against the Pennsylvania Railroad, plaintiff in error representing the railroad. He called Otto J. Keller, an occurrence witness, on behalf of the railroad. The witness was not interrogated on direct examination about any statement he had given shortly after the accident involved in the suit on trial, nor was it exhibited to him on direct examination. His testimony on direct examination showed no need to refresh his recollection by the statement in question. On cross-examination it developed the witness Keller, before appearing on the witness stand, had been to plaintiff in error's office for interview and interrogation concerning the accident.
It further appears that plaintiff in error had in his office a photostatic copy of the original statement the witness had given to a claim agent, and that the witness did not read the statement in plaintiff in error's office, but it was discussed with him. The following then transpired upon cross-examination:
"Q. Where did you see Mr. White?
"Q. And when you talked about it then did you see any statement then?
"Q. What statement did you see?
"A. Well, the statement I gave Mr. Whipple.
"Q. Was it up there at the time? Did Mr. White have it? He did have it? Tell me, did he have it or didn't he?
"Q. Did it have your signature on it?
"Mr. White: I am going to object to all this, if the Court please.
"Mr. Coghlan: Q. Now, and it was signed by you?
"Mr. Coghlan: May I have it, please?
"Mr. White: No, sir. I take exception on that conduct and I want to be heard on a motion.
"Mr. Coghlan: The witness has used the document to refresh his recollection.
"Mr. White: I want to be heard on a motion.
"The Court: Very well. We will retire to chambers and the reporter will come in, please."
Out of the presence of the jury, plaintiff in error moved to declare a mistrial because of the prejudicial conduct of counsel in making a demand for the statement in the presence of the jury. This motion was overruled. When the hearing resumed in the presence of the jury, the witness was further cross-examined as to whether the statement, which was discussed in plaintiff in error's office but was not ...