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Carlson v. Healey

APRIL 18, 1966.

FRANK J. CARLSON, PLAINTIFF-COUNTER-DEFENDANT-APPELLEE,

v.

HERBERT HEALEY AND HIGHLAND LUMBER AND FUEL COMPANY, AN ILLINOIS CORPORATION, DEFENDANTS-COUNTER-PLAINTIFFS-APPELLANTS.



Appeal from the Circuit Court of Winnebago County; the Hon. ARTHUR V. ESSINGTON, Judge, presiding. Reversed and remanded.

MR. PRESIDING JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.

On January 12, 1963, at about 11:00 a.m., plaintiff, Frank J. Carlson, was northbound in an automobile on 15th Street approaching the intersection of 6th Avenue in Rockford, Illinois. The defendant, Herbert Healey, was eastbound on 6th Avenue approaching the intersection in an automobile owned by his employer, the defendant Highland Lumber and Fuel Company. The intersection was not controlled by stop signs or other traffic control signals. A collision occurred. The plaintiff filed suit for his personal injuries and property damage and the corporate defendant counterclaimed for its property damage. The case was tried before a jury with the verdict being in favor of the plaintiff against both defendants in the amount of Four Thousand One Hundred Sixty-One ($4,161) Dollars, and against the corporate counterclaimant on the counterclaim. The court entered judgment on the verdict and denied a post-trial motion. Defendants and counterclaimant appealed charging several errors both in the taking of the discovery depositions of the plaintiff and during the trial.

During the discovery deposition of the plaintiff he refused to answer several questions on the advice of counsel. These questions are as follows:

1. Now, considering these two payments that you had made, do you know what the remaining balance was at that time?

2. Now tell me how you know it (the horn) was working?

3. Do you know of anyone that will say Mr. Healey failed to keep a proper or any lookout ahead for you or someone else in your car?

4. Do you know of anyone that will say that Mr. Healey failed to yield the right-of-way to your automobile as he was approaching this intersection?

5. Do you know of anyone that will say that Mr. Healey failed to decrease the speed of his automobile as he approached this intersection?

6. Will you or will anyone else say that he was in any other manner driving his automobile in a negligent, careless or improper manner?

Defendants moved to compel answers to the questions propounded. After the motion was heard and denied, they thereafter moved to exclude all evidence pertaining to various allegations of negligence set forth in the complaint. This motion was likewise denied.

Appellee contends that the propriety of the taking of the depositions is not preserved for appeal because the deposition was never filed with the clerk and never became a part of the record in the case. Also, that the praecipe for record did not direct the inclusion of the deposition and further the evidence and arguments presented on the motion to compel answers were not incorporated in the record.

We note that the deposition of the plaintiff consisted of 70 pages and that of his wife, 40 pages. We also note that an extract of the transcript of the deposition was incorporated in the motion to compel answers and is contained in the record. We feel that the alleged errors are adequately preserved in this manner to receive our consideration.

An analysis of the questions indicated that the first question is directed at determining the balance due on a loan which plaintiff had made to finance the purchase of the automobile. We fail to see any reason for this question since the ownership by the plaintiff of his automobile was admitted in defendants' answer and the parties ultimately stipulated as to the amount of the damage to the respective vehicles. We find no error in the court sustaining plaintiff's refusal to answer this question.

The second question was addressed to plaintiff after he had previously testified during the deposition that the horn had been working at all times, that he never knew it not to work and that he was sure it was working. After this extensive questioning we feel that the second question was only argumentative and the court properly sustained the refusal to answer.

The remaining four questions are all essentially of the same nature, that is, requesting the plaintiff to state whether he knew anyone who would say that the defendant Healey was guilty of an ultimate allegation of negligence contained in the complaint.

Illinois Supreme Court Rule 19-4 (c 110, § 101.19-4, Ill Rev Stats, 1963) provides:

"Upon a discovery deposition, the deponent may be examined regarding any matter, not privileged, relating to the merits of the matter in litigation, whether it relates to the claim or defense of the examining party or of any other party, including . . . the ...


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