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Hansel v. Friemann

DECEMBER 12, 1962.

ALONZO HANSEL AND RUTH HANSEL, PLAINTIFFS-APPELLANTS,

v.

GEORGE K. FRIEMANN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County; the Hon. JAMES O. MONROE, JR., Judge, presiding. Affirmed.

HOFFMAN, JUSTICE.

Rehearing denied January 19, 1963.

This action grows out of a motor vehicle collision occurring on State Route 143 near Edwardsville. The plaintiffs charged the defendant with the negligent operation of his automobile and the defendant counter-claimed against the plaintiffs charging negligence in the operation of their automobile. The cause was tried before a jury which returned a verdict in favor of the defendant upon his counterclaim and judgment was rendered upon said verdict. From that judgment, this appeal is taken.

Although plaintiffs complain of many errors in their statement regarding the nature of the case, they only make and argue one point. Accordingly, under Rule 7, the points not made and argued are waived.

The one and only point involved in this appeal is whether or not the court committed reversible error in permitting a witness, one Alice Daugherty, to testify for the defendant.

In January, 1959 plaintiffs, pursuant to the rule, served the following interrogatories upon defendant's attorney, Earl Hodges:

"(1) Please give the names and addresses or otherwise identify and locate all persons, who to your knowledge, or to the knowledge of your agents and attorneys, purport to have knowledge of relevant facts pertaining to the allegations in the Complaint, whether pre-occurrence or post-occurrence.

"(2) In the future and prior to the trial of this cause will you furnish the names and addresses or otherwise identify persons purporting to have knowledge of relevant facts pertaining to the allegations in the Complaint as these persons become known to either you or your agents and attorneys?"

Attorney Hodges in September, 1959 answered interrogatory No. 1 by listing 9 persons, not including the aforesaid Alice Daugherty. Defendant's attorney answered the second interrogatory in the affirmative. In December, 1959 Attorney Hodges withdrew and defendant's present counsel took full charge. The name and address of the witness Alice Daugherty was never furnished plaintiff. During the trial, in April, 1961, the defendant called Alice Daugherty as a witness. The plaintiffs immediately objected to her testifying, on the grounds that her name had never been furnished in response to either interrogatory. The trial judge overruled the objection and permitted her to testify for the defendant.

The parties to this lawsuit were driving their respective automobiles on an east-west two lane concrete highway with a conventional center line. The collision occurred at the bottom of a hill near the end of a curve. The plaintiffs were traveling eastbound and the defendant, westbound. The plaintiff driver, Alonzo Hansel, testified that he first saw defendant's truck as it came over a hill to the east and that defendant was in his proper right hand lane at that time. He further testified that defendant stayed in said lane until he was at least halfway down the hill and did not start to veer across the center line until the two cars were 100 feet apart. The defendant testified that he never veered from a straight course and was in his proper lane at the time of impact. He further testified that he passed an eastbound car prior to the collision. Alice Daugherty corroborated the defendant's testimony to the effect that she passed him prior to the impact, but she further testified that she did not see the collision nor did she see the defendant immediately before the collision. At the time the collision occurred, she stated that she had her back to the scene of the accident and was in fact at the top of the easternmost hill, some 700 feet away. She heard the collision, returned to the scene and was a post-occurrence witness to what she saw. In this respect, her testimony was cumulative and corroborative as to what the defendant said and what other witnesses said. The one overriding factual question in the case is where the respective parties were with regard to the center line of the highway at the time of impact.

With respect to the point involved in this case, the plaintiff argues that the foregoing interrogatory No. 2 is continuing and that the defendant was required to furnish an answer thereto up to the time of trial. He further argues that the defendant is bound to give truthful answers to interrogatories and that both good faith and the spirit of the rule requires that a defendant see to it that his answers be truthful at the time of the trial as well as at the time the interrogatories are answered. The defendant argues that there is no legal duty upon a party to answer a continuing interrogatory, such as plaintiffs' interrogatory No. 2, that permitting a witness to testify is discretionary with the trial court, and that a judgment will not be reversed where plaintiffs failed to show that the name of the witness was withheld intentionally and in bad faith and where the witness' testimony was merely cumulative and corroborative.

The real question in this case is whether or not the witness, Alice Daugherty, was competent to testify when she was called at the trial. This problem can be resolved without deciding whether or not it is permissible to submit a continuing interrogatory.

In a civil action the competency of a witness is governed by the Evidence Act, and no person is disqualified as a witness except as stated in said Act. (Ill Rev Stats 1961, c 51, sec 1, et seq.) The Act ...


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