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Schusler v. Fletcher

AUGUST 30, 1966.

GERALD SCHUSLER, PLAINTIFF-APPELLANT,

v.

NELSON M. FLETCHER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the Sixteenth Judicial Circuit of Kane County; the Hon. JOHN A. KRAUSE, Judge, presiding. Judgment for defendant reversed and remanded.

MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT. Plaintiff while riding as a guest passenger in an automobile owned and driven by defendant was injured when defendant lost control of his automobile and hit a tree. Suit was filed in Kane County Circuit Court charging defendant with wilful and wanton misconduct in the operation of the automobile, and from a jury verdict of not guilty plaintiff appeals.

During the trial plaintiff testified that about 10:00 o'clock p.m. on December 30, 1961, he went to Big Lee's Tavern on Wilson Street in Batavia, had some beer and was playing a bowling machine with some other customers. About midnight he observed defendant, greeted him and joined him at the bar. They each purchased and consumed a round of beers.

Plaintiff stated on direct examination that about 1:30 a.m. he started to leave the tavern and defendant offered him a ride home; that they left the tavern about 1:45 a.m. in the defendant's Corvette automobile with the defendant driving; that they drove East on Wilson Street and as they reached McChesney Street where plaintiff lived, defendant did not stop but kept going although plaintiff tried to get out. Defendant continued on Wilson Street to Route 59 over plaintiff's objection, and then turned North on Route 59 and proceeded at about seventy miles per hour toward the City of West Chicago. Defendant slowed down slightly going through West Chicago and after reaching the north city limits was traveling as fast as seventy-five miles per hour. Plaintiff further testified that he repeatedly requested the defendant to slow down and stated that the highway was icy and the weather was cold and foggy. As they approached a particular curve the car went off the road, through a snowbank, traveled one hundred feet and struck a tree. Plaintiff was knocked unconscious and was subsequently taken to a hospital for treatment of his injuries.

On cross-examination plaintiff admitted that while he was hospitalized he was interviewed by an investigator and told the investigator that he and the defendant had not been to any tavern, had no drinks; that the defendant was a good driver; that he had never complained about defendant's driving; that they were just going to ride around in Elgin; that another car was coming around the curve against them and, that the defendant was going between forty-five and fifty-five miles per hour when the accident occurred.

On redirect examination plaintiff swore that his testimony on direct examination was the truth. He also stated that the investigator who talked to him in the hospital was an insurance investigator for an insurance company, and what he told the investigator was not true. These questions and answers ensued:

"Q. Why was it that you told this investigator something you knew wasn't true?

Mr. Clancy: I object to that.

The Court: Sustained. Why is it material?

Mr. Gilbert: I want to explain this contradiction.

The Court: That is for the jury to decide."

No offer of proof as to what the plaintiff would have said in response to the question was made.

The proofs offered by the defendant consisted solely of the defendant adopting his own testimony given under section 60 of the Civil Practice Act during the plaintiff's case and the introduction in evidence over plaintiff's objection of plaintiff's complaint in a dramship action arising out of the same accident.

Appellant urges in this appeal that error was committed by the trial court in prohibiting him from explaining his reason for having made false answers to the insurance investigator and in admitting in evidence over his objection the complaint filed by him in a dramshop action arising from the same accident and permitting defendant to read it to the jury.

With reference to the first ground urged, it has long been the rule of law that where a witness is impeached by contradictory statements, a party calling the witness is entitled to show the circumstances under which the contradictory statements were made and to explain the reason therefor. Atchison, T. & S.F.R. Co. v. Feehan, 149 Ill. 202, 215, 36 N.E. 1036 (1893); Walther v. Chicago & A.R. Co., 188 Ill. App. 221, 226 (1914); The People v. Hicks, 28 Ill.2d 457, 463, 192 N.E.2d 891 (1963), and Forslund v. Chicago Transit Authority, 9 Ill. App.2d 290, 299, 132 N.E.2d 801 (1956). For this reason the subject matter of the question propounded to his ...


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