Appeal from the Circuit Court of Madison County; the Hon.
JOSEPH J. BARR, Judge, presiding. Reversed and remanded.
This cause arose out of a two car collision at the intersection of Nameoki Road with Madison Avenue, near Granite City, Illinois. Robert B. Jost, with his wife riding with him, was the driver of one car; James L. Hill the driver of the other car.
Robert Jost filed suit for damages to his car, and about three months afterwards, he and his wife filed suit for personal injuries and loss of consortium. Count I of the husband and wife complaint was for personal injuries to Robert B. Jost. Count II was for personal injuries to Anabell Jost. Count III was by Anabell Jost for loss of consortium by reason of the collision and the injuries suffered by her husband. Count IV was by Robert B. Jost for loss of consortium by reason of the collision and the injuries suffered by his wife. The defendant James L. Hill answered the complaint and counterclaimed for damages to his automobile.
By interrogatory plaintiffs asked for and were furnished the names of all preoccurrence and post-occurrence witnesses. In the list of witnesses furnished, the names of Billy Miller and David Cox appeared. In supplemental interrogatories, plaintiffs asked if any statements were taken in writing, by a court reporter or a tape recorder, from persons who were supposed to have witnessed the accident, and if the answer was in the affirmative, to please file a copy of all such statements. To these supplemental interrogatories defendant filed objections. Plaintiffs countered the objections of defendant by motion for order upon defendant to produce for copying and inspection, written statements of some five named persons, among them Billy Miller and David Cox. The court allowed the motion. The defendant did not produce the statements and by a further order dated September 21, 1962, the defendant was again ordered to produce the statements on or before noon, September 22, 1962. Defendant did not comply and trial was commenced on September 26, 1962. On the third day of the trial, September 28, 1962, plaintiffs having rested their case, defendant moved to vacate the order to produce the statements. Plaintiffs objected and asked that the parties whose statements were taken on behalf of the defendant be not permitted to testify by reason of defendant's failure to comply with the order to produce the statements. The motion to vacate by the defendant was denied. Motion to deny defendant use of said witnesses was allowed. Defendant then offered proof by the two witnesses, Billy Miller and David Cox, and the offer of proof was denied by the court.
Before the selection of the jury was commenced, the plaintiffs moved to dismiss without prejudice Counts III and IV of plaintiff's complaint. Defendant objected, but the court allowed the motion to dismiss without prejudice.
The testimony of Miller and Cox being excluded, the trial was completed and the matter submitted to the jury. The jury found for Robert Jost in the amount of $2,500, nothing in favor of Anabell Jost, and against the defendant on the counterclaim. Defendant appeals.
The appeal raises two questions. First, had the trial commenced before the motion to dismiss Count III and IV of the complaint was made? Second, was the action of the trial court in excluding the testimony of Miller and Cox proper under the circumstances?
Section 52 of the Practice Act provides that a plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice. Here, the motion was made in the judge's chambers, before the selection of a jury was commenced. In the case of Wilhite v. Agbayani, 2 Ill. App.2d 29, 118 N.E.2d 440, the court held that the trial begins when the jury are called into the box for examination as to their qualifications and that the calling of the jury is part of the trial. In the case of Cosmopolitan Nat. Bank of Chicago v. Goldberg, 22 Ill. App.2d 4, 159 N.E.2d 1, the question was whether a pretrial conference was a beginning of a trial. The court in that case citing the Wilhite v. Agbayani case, held that while the summoning of a jury to the court room does not constitute the beginning of a trial, the examination of a jury does.
Here, the motion was made in apt time and the dismissal of Counts III and IV without prejudice was proper.
The second point of the appeal concerns the written statements taken by defendant Hill's insurance carrier from Billy Miller and David Cox, shortly after the accident. These were the statements demanded by the plaintiffs which the defendant refused to produce. The failure or refusal of the defendant to produce the statements was the basis of the trial court's refusal to permit Miller and Cox to testify on behalf of the defendant.
Miller and Cox were disinterested, nonparty witnesses. This distinction is made for the reason that some of the cases seem to distinguish between interested, party witnesses and disinterested, nonparty witnesses.
Supreme Court Rule No 19-5, chap 110, section 101.19-5, Illinois Revised Statutes, provides as follows:
"(1) Matters Privileged against Discovery. All matters which are privileged against disclosure upon the trial are privileged against disclosure through any discovery procedure. Disclosure of memoranda, reports or documents made by or for a party in preparation for trial or any privileged communications between any party or his agent and the attorney for the party shall not be required through any discovery procedure."
Plaintiffs cite the case of Stimpert v. Abdnour, 24 Ill.2d 26, 179 N.E.2d 602, in support of their position that the statements of Miller and Cox were not privileged under Rule 19-5. In that case the court held that the written statement of one of the defendants, was not privileged under the rule. The court in that case cited decisions on other situations. The names of occurrence witnesses are not exempt from discovery, as being either a work product of a lawyer or as memorandum prepared in preparation for trial. Hruby v. Chicago Transit Authority, 11 Ill.2d 255, 142 N.E.2d 81; Krupp v. Chicago Transit Authority, 8 Ill.2d 37, 132 N.E.2d 532. Transcript of testimony of witnesses taken pursuant to law in a separate proceeding are not exempt under the Rule. McGill v. Illinois Power Co., 18 Ill.2d 242, 163 N.E.2d 454. A defendant is entitled to production of material documents in the hands of the State. People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197; People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1. The Court in the Stimpert v. Abdnour case ruled that the transcribed statement of one of the defendants, when properly authenticated, would be independently admissable as an admission of a party. As this court interprets the Stimpert v. Abdnour case, the holding of the court in that case was limited to party witnesses, that is, those interested in the outcome of the case, and did not extend to nonparty or disinterested witnesses. And the reasoning of the court in holding that the statement was admissible, was on the ground that it was an admission of a party. This reasoning would not extend to a statement made by a person not a party to the cause.
In the case of Eizerman v. Behn, 9 Ill. App.2d 263, 132 N.E.2d 788, cited by plaintiffs, the court refused to follow the "good cause" rule laid down by Hickman v. Taylor, 329 U.S. 495, holding that there are no provisions in Supreme Court Rule 19-5 for exceptions on good cause shown. And the court in that case held that memoranda, reports or ...