Appeal from the Superior Court of Cook County; the Hon.
FRANCIS P. HANAGAN, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Thomas T. Ryan (hereafter referred to as the plaintiff) brought a suit in the Superior Court of Cook County against Kenneth Monson (hereafter referred to as the defendant) and Joseph Rafferty, who was dismissed out of the suit before trial. The suit was based on injuries suffered by the plaintiff caused by an impact with an automobile driven by the defendant, which occurred at the intersection of Addison and Wilton Streets, in Chicago. Plaintiff fell to the street into the pathway of an automobile driven by Joseph Rafferty, whose car ran over the plaintiff's foot. The jury brought in a verdict for the defendant. The court overruled the post-trial motions of plaintiff and judgment was entered on the verdict. From that judgment the plaintiff now appeals.
The plaintiff contends that the verdict was against the manifest weight of the evidence, and that the court erred in his rulings on evidence, in permitting improper remarks of defendant's counsel to be heard by the jury, and in excluding certain testimony during the trial. Plaintiff also alleges that certain instructions were improperly given by the court. The defendant contends that he was not negligent and that the plaintiff's negligence was the sole cause of his injury. In his brief defendant further states: "Plaintiff's injury was minor. He has been paid $1500 by the co-defendant. This was full compensation for all his injuries." That question could not be raised in this court and is not properly before us.
There is a sharp conflict in the testimony as to whether or not the plaintiff at the time of the accident was in the crosswalk at the intersection of Addison and Wilton Streets. There is no testimony in the record that at the time of the accident the plaintiff was intoxicated, unless that can be inferred from the statement made by the defendant that after the accident the plaintiff was refused a drink in the bar. The issues as to the negligence of the defendant and the due care of the plaintiff properly should have been resolved by the jury. There is nothing in the record before us which would indicate that the finding of the jury in favor of the defendant is against the manifest weight of the evidence; and we could also say that had the jury found in favor of the plaintiff the same rule would be applied. The question which we must resolve is whether under all the circumstances appearing in the record before us the plaintiff had a fair trial.
The trial was conducted in a somewhat unorthodox manner. Originally suit had been brought by the plaintiff against Joseph Rafferty, and the plaintiff took a pretrial deposition of Rafferty. Subsequently the plaintiff amended his pleadings and made Kenneth Monson, the present defendant, a party to the suit. By stipulation between Rafferty and plaintiff, Rafferty was dismissed from the suit. At the time Rafferty paid the plaintiff $1,500. A copy of Rafferty's deposition was sent to the attorney for the present defendant.
During the trial of the case the plaintiff called Rafferty as his witness. After a conference in chambers at which the plaintiff claimed surprise, the court permitted the plaintiff to ask Rafferty as to whether he was asked certain questions and made certain answers in the pretrial deposition. It is a well understood rule of law, as stated in People v. Michaels, 335 Ill. 590, 167 N.E. 857:
". . . when a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him and by such examination show that the witness is giving unexpected testimony, and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience and cause him to relent and speak the truth if he was lying. If, however, the witness denies the alleged statements the party calling him must be concluded by his answers, and cannot show, either by the written statements of the witness or by other witnesses, that the witness did, in fact, make those statements, either for the purpose of impeachment or as original evidence of the facts sought to be proved."
See also 37 ILP Witnesses, sec 226.
[3-6] Subsequently in the further examination of Rafferty the plaintiff again claimed surprise, and the court refused to permit him the right to again call Rafferty's attention to his former statements. We are unable to understand the reasoning of the court in this particular matter. We know of no rule that surprise can only be claimed once in the examination of the witness. When the defendant started to cross-examine Rafferty the plaintiff objected on the ground that the defendant was going beyond the scope of the direct examination, and the court overruled the objection, stating that if the cross-examination did go beyond the scope of the direct then it would be binding on the defendant. In our opinion the court properly overruled the objection. Counsel for the defendant then read to Rafferty certain statements from the pretrial deposition, and stated that he was attempting to refresh Rafferty's recollection. This was objected to and the court overruled the objection provided he would connect it up. At the time the court treated the matter as an attempt to impeach the witness, but subsequently counsel for the defendant again stated that it was an attempt to refresh the witness' recollection. On cross-examination the rule with reference to refreshing the recollection of a witness does not apply, and the only proper way to attack the witness would be by asking him concerning specific questions and answers which he had made in the pretrial deposition. In case he either did not remember he made the answers or denied that he did make them, the deposition should have been introduced.
On cross-examination Rafferty testified that he did not believe that he smelled the plaintiff's breath. Some time later in the cross-examination counsel for defendant, again for the stated purpose of refreshing Rafferty's recollection, read from the deposition a question and answer which indicated that Rafferty did smell alcohol on plaintiff's breath. The plaintiff objected to the question as to whether Rafferty recalled making such statement. The court overruled his objection and no answer to the question was given by Rafferty. Again on the trial Rafferty testified that after the accident the plaintiff asked both Rafferty and defendant to leave, and Rafferty said further: "I wouldn't say that he wanted us to leave so he wouldn't get in trouble." Again for the stated purpose of refreshing the recollection of the witness, counsel for the defendant read from the deposition that Rafferty had said that plaintiff had asked them to go so he would not get into trouble. Rafferty said he could not recall that the plaintiff had made that statement. The deposition was not introduced in evidence, and again the defendant's counsel stated that he was going to read further matters from the deposition for the purpose of refreshing the witness' memory, and in the deposition Rafferty had answered that the bartender had refused to serve the plaintiff, although he requested very strenuously to be served. The witness in response to the question as to whether he made such statement said that he was certain that "anything . . . in the deposition is things that I said at times when my memory was fresher than it is now." Again during the cross-examination of Rafferty counsel for the defendant asked the witness whether he was at the present time a party to the lawsuit. Rafferty stated he was not. Counsel for the defendant then asked him as to whether he, Rafferty, had any agreement with the plaintiff in regard to his being dismissed out of the lawsuit. The attorney for the plaintiff said that to save time he would admit that Rafferty was dismissed from the suit. Counsel for the defendant then produced the stipulation dismissing Rafferty and stated that it was his understanding that counsel agreed that the stipulation had been entered into between the plaintiff and Rafferty and that the suit was dismissed as to him. Counsel for plaintiff said that that was true. Counsel for the defendant then asked the following question: "Now, Mr. Rafferty, was there anything said or any discussion then about the time that this was dismissed which was back in which was filed at least on February 1, 1956, was there any discussion between you and Mr. Altman or Mr. Ryan as to any consideration for a dismissal of the suit against him?" To this question the plaintiff objected. There was a discussion out of chambers, and the court stated that he would not permit evidence to be brought before the jury concerning the amount of the settlement, but that after the jury had returned its verdict the court could properly reduce the amount of the verdict by the amount of the settlement before entering judgment. This rule was laid down in De Lude v. Rimek, 351 Ill. App. 466 (1st Dist), 115 N.E.2d 561, and in that case, after a careful analysis and consideration of the Illinois cases which in some instances are in conflict, the court said:
"While the amount paid under a covenant not to sue should be deducted from the total damages sustained, we hold it the function of the jury to find the plaintiff's total damages, and the function of the judge, upon application of the defendant after verdict, to find the amount by which such verdict should be reduced by virtue of any covenant made by the plaintiff with another concerned in the commission of the tort."
We feel that this rule is the better and fairer one, and the trial court so ruled. Defendant's reference in his oral argument to this ruling of the trial court will be discussed later.
The investigating officer had arrived at the scene after the occurrence of the accident. When the plaintiff was examining him he asked the officer as to whether he was able to determine the position of the defendant's automobile with reference to the intersection of Addison and Wilton. The defendant objected on the ground that the automobile had been moved before the police officer came to the scene, and the court sustained the objection. Later the defendant testified that the automobile had not been moved when the police officer arrived. There was a material conflict in the evidence with reference to the position of the automobile of the defendant immediately after the occurrence of the accident. Counsel for the defendant could have determined from his client as to whether or not the automobile had been moved. Instead he stated the facts incorrectly, which was the basis of the court's ruling.
While cross-examining the plaintiff the defendant questioned him about Rafferty's testimony, and asked him more than once as to whether he would say that what Rafferty had testified to was true or false. Such a question is improper. In the first place it does not contain the element of the possibility of mistake on the part of the witness and it places the witness in the impossible position of being the judge of the veracity of another witness. Furthermore it has a tendency to prejudice the jury. The defendant then asked the plaintiff as to whether he did not hear Rafferty say that he had smelled liquor on plaintiff's breath. The plaintiff's counsel objected, stating that Rafferty said that he did not smell the breath of the plaintiff. Counsel for the defendant then said that Rafferty had made such a statement. Plaintiff in response to the question said he did not remember Rafferty making any such statement. The record does not show any such statement by Rafferty. The only testimony in the record with reference to Rafferty's smelling liquor on the breath of plaintiff is the statement of counsel for the defendant.
The plaintiff called as a witness a Dr. Eichelbaum, and the plaintiff asked the witness if he could state what his examination disclosed both objectively and subjectively. Counsel for the defendant made the following objection: "I will object to any subjective findings on the ground that the examination was made after this lawsuit had been filed and it is my understanding that the law is the exception to the hearsay rule, that the presumption that a person who goes to a doctor for treatment, he will tell the truth, but that will not attain where a person has filed a lawsuit and then goes to the doctor because the presumption that he is telling the truth then does not pertain and there is no such presumption, and I object to this witness testifying to any subjective complaints." The court then asked the doctor if he had treated the witness. The doctor, in answer to the court's question, stated he had treated the plaintiff, and the court then overruled the defendant's objection. Counsel for defendant is a competent lawyer of wide trial experience, and it is difficult to believe that at the time he made the objection he did not know that the statement he made was not the law. The statement, made in the presence ...