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Pellico v. E.l. Ramm Co.

JANUARY 31, 1966.

PAOLINO PELLICO, PLAINTIFF-APPELLANT,

v.

E.L. RAMM COMPANY, A CORPORATION; BERNICE E. WATTS, HENRY B. RAMM, KENT A. RAMM, AND CLARENCE H. RAMM, INDIVIDUALLY AND D/B/A RAMM CARTAGE COMPANY, A PARTNERSHIP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. FRANK LEONARD, Judge, presiding. Reversed and remanded.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is an appeal by plaintiff in a personal injury action, in which judgment was entered on a verdict for defendants. Plaintiff complains of trial errors and seeks a new trial.

The principal errors asserted are: (1) "The trial court permitted a witness to impeach plaintiff by relating a purported conversation with plaintiff which was conducted through an interpreter, in a language the witness neither spoke nor understood. The allowance of this hearsay testimony was compounded when the court refused to permit the interpreter to testify in rebuttal as to the actual conversation." (2) Misconduct of the defendants by "interjecting the question of an Industrial Commission hearing, both through testimony and again in argument." (3) Erroneous instructions.

On May 23, 1960, plaintiff, then 57 years old, was working for the Palumbo Excavating Company as a general laborer, laying sewer pipe. He had come from Sicily to the United States in 1956 and could neither speak nor understand English. Palumbo Excavating Company was engaged in constructing part of the Congress Expressway, and plaintiff was injured when he was struck by the rear end of a truck which was backing up in a construction yard.

Defendant, Bernice Watts, a truck driver working for the Ramm Cartage Company, a partnership, was driving a 2-ton flatbed truck loaded with 350 catch basin blocks weighing approximately 8 1/2 tons. He arrived at the construction yard about 1:00 p.m. and asked the foreman for someone to assist him. The foreman told the plaintiff to go with the driver and unload the truck next to a pile of pipe.

The truck had to be backed up about 30 feet, and plaintiff told Watts, "Speak no English." Watts pointed to his intended unloading area. Plaintiff walked to the rear of the truck to hand-signal Watts as the truck was backed up. Watts was using both his rearview mirrors, located on each side of the truck's cab, to see plaintiff signal and also to watch the area over which he was backing, rough, bumpy dirt and debris.

The principal dispute arises over the location of plaintiff as he directed the truck backwards and if the truck suddenly turned or lurched. There were no eyewitnesses. Plaintiff testified he was on the left side, about four feet to the side and fourteen feet to the rear, and started to walk backwards with the truck, which at first moved slowly, then the truck turned suddenly and quickly lurched backwards, and the left rear of the truck struck him and knocked him down.

Defendant Watts testified that plaintiff was at the right rear corner of the truck, signaling to him through the right rearview mirror, and that he was backing up while "riding" the clutch so that it was only halfway out, his right foot on the gas and his left foot controlling the clutch. Watts stated that as he drove backwards, he went over a small pile of bricks, and the truck jolted slightly. The truck did not lurch or "spurt" before striking plaintiff. Watts said his first indication that plaintiff was injured was when another person yelled at him to move forward, which he did immediately. He left his vehicle, walked to the rear and found plaintiff half sitting and half lying on some pipe.

Plaintiff was removed by police officers Lavery and Christy to the West Suburban Hospital and both testified at the trial. An interpreter was brought to the hospital and Officer Lavery said the interpreter spoke a different dialect, so no statement could be taken from plaintiff. Officer Christy did not know the interpreter nor whether he spoke the same dialect, nor if he could understand plaintiff. Over objection, Officer Christy was permitted to testify, "The interpreter said that the injured man had told him that he was on the west side of the truck, directing the truck back, and that he was afraid the truck driver was going to hit some tile or concrete on the other side. He ran on the other side of the truck, or attempted to run on the other side of the truck, to be sure he was clear, and was caught and pinned back."

During the rebuttal phase of the trial, the trial court refused to permit interpreter DeFrancisco, referred to by Officer Christy, to testify concerning the alleged statement made by plaintiff at the hospital. Plaintiff then made an offer of proof that the interpreter would have testified that "there was only one police officer present in the hospital when he spoke to Mr. Pellico about the manner in which the accident occurred. Mr. Pellico told him, in the Italian language, that the truck jumped at him. He was behind the truck and that the truck hit him and injured him. That was given to him by Mr. Pellico. That was all the information given by the witness DeFrancisco to the Police Department."

Considered first is the contention of plaintiff that the testimony of Officer Christy as to what the interpreter said at the hospital was hearsay, and only the interpreter may be called to testify as to what was said by plaintiff.

Defendants contend, "It was not necessary to call the interpreter to prove admissions of a party or to impeach the testimony of the plaintiff's witness who was present when the admissions were made. The testimony complained of was not sought to be stricken nor was there a request to have the jury instructed to disregard it, so as to preserve the point for review."

We have examined the authorities of defendants, and we are not persuaded they apply here. The rule to be used here is set forth in Wigmore on Evidence, § 812 (3rd Ed 1940):

"(1) By the Hearsay rule, every witness must be subject to the opportunity of cross-examination; an interpreter is a witness to the other witness' words; hence, the interpreter's report of the other witness' testimony cannot be used at another trial ...


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