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Wofford v. Devore

JULY 7, 1966.

SHIRLEY WOFFORD, PLAINTIFF-APPELLEE,

v.

THOMAS DEVORE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. AUSTIN A. LEWIS, Judge, presiding. Judgment affirmed.

GOLDENHERSH, P.J.

Rehearing denied August 2, 1966.

Defendant appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in the amount of $11,000. Defendant contends that the circuit court committed reversible error (a) in the giving of an instruction to the jury; (b) in refusing to permit a witness called by defendant to testify; (c) in its rulings as to certain portions of plaintiff's opening argument; (d) in refusing to permit defendant's counsel, in closing argument, to argue the failure of plaintiff to produce a witness.

The evidence shows that at approximately 1:30 a.m. on Sunday morning, an automobile being driven by plaintiff in an easterly direction, and an automobile being driven by defendant in a westerly direction, collided. The collision occurred on By-Pass Route 40, between Collinsville and East St. Louis, Illinois. At the point of collision the highway is straight, concrete surfaced, and there are two eastbound and two westbound lanes. The principal issue as to the occurrence was on which side of the center line the collision took place. The record amply supports the verdict finding the issues for the plaintiff.

Defendant argues that the court erred in giving plaintiff's Instruction Number 10, (IPI (20.01)). Defendant's principal contention is that the language used, "The defendant denies that he was guilty of negligence in doing any of the things claimed by plaintiff," erroneously implied that defendant admitted doing the acts alleged in the complaint, and merely denied that in so doing he was negligent, whereas the pleadings and evidence show that defendant denied doing the acts with which he is charged. Defendant states that the vice of the instruction is not inherent in IPI 20.01, but lies in plaintiff's failure to heed the admonition contained in the notes on use of the instruction (IPI page 107) that the bracketed materials set forth in the form of instruction must be modified to fit the particular case.

In the Additions and Revisions (1965) of IPI, a new paragraph has been added to the suggested form of IPI 20.01, and a proposed paragraph (number 3) contains language similar to that in the instruction before us, while a proposed paragraph (number 4) is phrased in the manner for which defendant contends here. (See Revision of IPI page 30.) Defendant's position is well taken and the Supreme Court Committee on Instructions has moved to remedy the situation. Under the pleadings, that portion of the instruction of which defendant complains, did not correctly state the issues, and we must determine whether the giving of the instruction was reversible error.

Plaintiff's Instruction Number 10 also contained the following:

"The defendant denies that he was guilty of negligence in doing any of the things claimed by plaintiff, and denies that the plaintiff was in the exercise of ordinary care, and further claims plaintiff was negligent in that she drove her automobile on the wrong side of the road which is denied by plaintiff."

In our opinion, this portion of the instruction adequately informed the jury that defendant contended that plaintiff drove her automobile on the wrong side of the road and eliminated any erroneous implication as to defendant's contention regarding the cause of the collision.

Defendant offered, and the court gave, an instruction in the language of IPI 21.02. This clearly instructed the jury that plaintiff had the burden of proving that defendant "acted or failed to act." Under the circumstances, the giving of the instruction was not reversible error.

Plaintiff testified that she had not driven an automobile for more than five months after the collision, and that she wore a neck collar for six months after suffering her alleged injury. During defendant's case, defendant called Judy Hargrove as a witness. Plaintiff's counsel objected to her testifying on the grounds that her name had not been furnished by defendant in answer to plaintiff's interrogatories and defendant had not advised plaintiff whether she was an occurrence, preoccurrence or post occurrence witness. The record shows that plaintiff had filed interrogatories which defendant answered, that on September 27, 1963, plaintiff filed a supplemental interrogatory asking defendant to supply the names and addresses of all persons other than those listed in the answer to the prior interrogatories who purport to have knowledge of facts pertinent to the allegations of the complaint. The supplemental interrogatory was not answered, and no action was taken by plaintiff to compel defendant to answer. The case was tried in June of 1964.

In chambers, out of the presence of the jury, counsel for defendant stated that defendant had received knowledge of the witness on December 2, 1963. The court sustained plaintiff's objection to the testimony of the witness, whereupon defendant's counsel offered to produce the witness for conference with plaintiff's attorney and requested the court to recess the trial for this purpose. The court persisted in its ruling, whereupon defendant's counsel made an offer of proof, being in substance, that the witness, for a period of two months spent a great deal of time at her mother's home, that her mother lived next door to plaintiff, that she saw plaintiff drive an automobile before Christmas 1962 and once or twice after Christmas, probably in January 1963, and plaintiff was not wearing a neck collar at those times. The collision in which plaintiff allegedly suffered the injury occurred in November 1962. Defendant argues that the court erred in its ruling and points out that plaintiff failed to move to compel an answer to the interrogatory, that had defendant answered the interrogatory within the time provided by rule, (Supreme Court Rule 19-11), the witness would not have been known to her, in which event there would have been no continuing obligation to furnish her name, unless plaintiff filed another interrogatory.

[5-7] The parties have cited, quoted from, and argued numerous opinions in which the Supreme and Appellate Courts have discussed the issue here presented. An analysis of these cases leads us to reaffirm the conclusion reached by this court in Buckler v. Sinclair Refining Co., 68 Ill. App.2d 283, 216 N.E.2d 14, wherein the court, through Mr. Justice Craven, at page 18, said: "The question of the appropriate sanction, if any, to be employed by the trial court for failure to list a witness in response to a proper interrogatory is within the discretion of the trial court." As stated in Wright v. Royse, 43 Ill. App.2d 267, 193 N.E.2d 340, at page 287, ". . . it is obvious that the intent of the drafters of the rules was not to pre-empt the discretionary powers of the trial judge in his conduct of a trial or to in any way limit the sanctions that might be imposed at that stage of the proceedings. We believe that trial courts have, and must have, broad ...


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