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Hudson v. Augustine's

JUNE 21, 1966.




Appeal from the Circuit Court of St. Clair County; the Hon. JOSEPH E. FLEMING, Judge, presiding. Judgments affirmed.


This is a personal injury case arising out of an accident which occurred in a construction area in back of Augustine's, a restaurant located in Belleville, on October 12, 1961.

Augustine's restaurant is a family owned corporation and Mary Hudson is a sister to the three Augustine brothers who were the stockholders and officers of the corporation. On the day in question, Paul Augustine brought his mother, Martha, his sister Mary Hudson, and Steven, the minor plaintiff, to the restaurant. Mary was going to take Steven, who was four and one-half years old, to the barbershop but Paul asked her to help serve a special party. Mary agreed, entered the kitchen and placed Steven in front of a box near the pizza oven in the kitchen. She gave him a pencil and some drawing paper to occupy his time. She asked her mother, Martha Augustine, to watch the plaintiff and Mary took her place on the food assembly line. Within a very few minutes, Steven disappeared. It later developed that the plaintiff had left the kitchen and gone into a construction area behind the building where materials were being assembled incident to a remodeling project. Jewell Eldridge, a deaf-mute, was an employee of the corporation. He worked as a general handyman and his duties included driving a certain panel truck owned by the corporation. At the time of the occurrence, there was lumber in the truck stacked to a depth of twelve or thirteen inches and projecting three or four feet behind the truck. Both doors at the rear of the truck were open to accommodate the projection of the lumber. Eldridge had driven the panel truck, with the load of lumber, to the rear of the restaurant near the remodeling project. Eldridge backed the truck up to within three feet of the restaurant door preparatory to unloading the lumber. He got out, went back to remove the lumber from the truck and saw Steven crying and with his clothing torn. He immediately picked up the minor plaintiff and carried him in to the kitchen. Other than Eldridge and the plaintiff, there were no eyewitnesses to the accident or the occurrences immediately preceding it.

On April 20, 1962, Davis, an investigator for plaintiff's attorney, through Dale Schwahn acting as an interpreter, asked Eldridge a series of questions concerning the accident in which plaintiff was involved on October 12, 1961. Dale Schwahn had also been an employee of Augustine's, who had been working with Eldridge at Augustine's for approximately six years. Present also at the time these questions were propounded was a Notary Public, James Keehner, and Jesse L. Hart, a court reporter. First, Schwahn was sworn by the Notary to truly and correctly interpret Eldridge's statements; the Notary then had Schwahn relate in sign language an oath that Eldridge would tell the truth, the whole truth and nothing but the truth to which Schwahn replied, "He says he does." Next, in the statement appears a series of questions by Davis directed to and answered by Schwahn, to the effect that he, Schwahn, was not an interpreter for the deaf and dumb, but only for Eldridge who had taught Schwahn "everything, the signs and that," that Schwahn had been communicating with Eldridge "quite easily" for the 6 years they had been employed together, that Eldridge had taught Schwahn "the basics, the spelling," and that Schwahn had "not really" had any trouble in communicating with friends of Eldridge's wife in "this sign language used." (The record does not show that either Eldridge's wife or her friends were deaf or dumb). In answer to Davis' question, "Are you the only person who communicates with Mr. Eldridge with this language?" Schwahn answered, "Ralph Augustine can to a certain extent" and in answer to Davis' question, "They depend on you primarily for communication?" Schwahn answered, "Well no. See I don't know, you can make motions for somethings to do, you know," and in answer to Davis' question, "As far as getting a specific idea across, rather than pointing or something, with the sign language you use, do they depend on you primarily?" Schwahn answered, "Yes, for certain things, yes."

Davis then proceeded to question Eldridge through Schwahn, who stated with reference to the occurrence that Eldridge had seen the plaintiff at Augustine's on previous occasions with his mother and had at the direction of Tony Augustine gotten the lumber and that he drove into Augustine's lot, saw the plaintiff when he started to back up to a door through which he was going to take the lumber; that he was about 20 feet from the door and that at that time the plaintiff was playing on the ground about 10 feet to the right of the truck, facing the truck, and that the plaintiff looked at the truck and started playing on the ground, that he did not sound his horn, that he backed up at a speed no greater than 5 or 10 miles per hour, and while backing used both the rearview mirror and the open door to look and also that he turned his head to the right to look out the back of the doors; he did not know the plaintiff had been struck until he had stopped the truck about 3 feet from the door and found plaintiff lying on the ground at the left-hand side of the truck when he had gotten out of the truck and gone to the back of it to unload. Eldridge also answered that he had driven this panel truck many times and on other occasions had delivered to this particular door, that normally there were no children about this area, and that although he had seen this plaintiff with larger boys in the area of this back door, he had never seen plaintiff in this area by himself, prior to this accident. Eldridge presented his driver's license, from which Davis read that it had a code restriction of corrective eye lenses and outside rearview mirror.

The transcript of the questions and answers made by the court reporter also included statements directed by Davis to Schwahn, and shows that a considerable amount of difficulty was encountered in the questioning and interpreting with numerous instances of Schwahn himself giving the answers. In one instance, according to the transcript, Eldridge answered that he had seen the plaintiff playing in the area of the accident an hour before he started backing up; whereas the evidence indicates that the plaintiff had not, on this particular day, been on the premises an hour before that time, and was taken by his mother directly into the kitchen upon arrival. In answer to Davis question, "From the time he first saw the boy until the time he realized he had hit the boy, approximately how much time had elapsed?" Schwahn answered, "He says ten minutes. See, sometimes certain things you can explain to him you would explain to a normal person — there is lots of things he don't understand. I don't know how to exactly explain it."

Eldridge died on May 10, 1962, and on May 17, 1962, a complaint was filed against Augustine's, Inc., and on February 25, 1963, a supplemental complaint was filed against Thomas O'Donnell, as Administrator of the Estate of Jewell Eldridge, deceased.

The transcript of the questions, answers, statements and conversations, made by the court reporter, was identified as Plaintiff's Exhibit 2 by Davis, Schwahn and Hart, the court reporter, each of whom testified that it was a true and accurate copy of everything that was said. Plaintiff offered his Exhibit 2 into evidence and it was objected to on behalf of both defendants, Augustine's, Inc., and the Administrator of Eldridge's estate. Plaintiff's counsel stated that he would like to have it read in open court, if there was a favorable ruling "so these items could be ruled on in open Court, as if Mr. Eldridge were here to testify through an interpreter."

The trial court advised that any admissions against interest contained therein would be admissible, but that the statement could not be read to the jury the same as if Eldridge were testifying. The court took the attitude that such statement could not be read to the jury because defendants would then be denied the right of cross-examination. In the taking of evidence depositions, cross-examination is provided for; but a decedent's statements against interest are not objectionable because of the lack of opportunity to cross-examine, because the lack of opportunity to cross-examine is deprived of significance by the incongruity of the party's objecting to his own statement on the ground that he was not subject to cross-examination by himself at the time. Wigmore on Evidence, 3rd ed 1940, § 1048, Cleary, E.W. Handbook of Illinois Evidence (2d ed 1963), p 280, § 17.11.

The court sustained the objection as to both defendants. Plaintiff then offered his Exhibit 2A, which was a modified version of Exhibit 2, in which there had been deleted certain questions and answers and statements as prepared by defense counsel. Objections made on behalf of both defendants were sustained as to Plaintiff's Exhibit 2A.

Plaintiff then made offers of proof of the testimony of Davis and Schwahn to the effect that Eldridge made the statements contained in Plaintiff's Exhibit 2A, as against either or both of defendants. The remainder of the proceedings were before the jury.

The admission of certain photographic evidence was then stipulated to and plaintiff called two of the three Augustine brothers as to physical facts and Mary Hudson, plaintiff's mother, who testified as to the occurrences of that day leading up to her and plaintiff being at Augustine's, her work there after placing plaintiff near the pizza oven, under the surveillance of her mother, Martha Augustine, that she did not see plaintiff leave the kitchen and her discovery of plaintiff's injury when Eldridge carried plaintiff into the kitchen. Martha Augustine testified that she had undertaken to watch plaintiff, that she did not know how much time had elapsed, and that she discovered plaintiff was not in the kitchen only when Eldridge was carrying him through the dishwashing room into the kitchen.

Plaintiff, who was at the time of the trial approximately 7 years old, was then called on his own behalf. Objection to his testimony as against Eldridge's estate was made as being incompetent under section 2 of the Evidence Act, and the objection was sustained. He testified, that he recalled the day of the accident, was standing in front of the truck when he saw it, that the truck was coming toward him, that he never heard a horn and that Eldridge got out of the truck after it hit him; that he screamed before he got hurt but Eldridge did not stop and ran over him; that he was somewhere over to the left of the door. In answer to the question, "What was the first thing that hit you, if you know?" plaintiff ...

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