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Simmons v. Ralph N. Budelman Excavating Co.

APRIL 20, 1967.

BETTY A. SIMMONS, PLAINTIFF-APPELLEE,

v.

RALPH N. BUDELMAN EXCAVATING COMPANY AND THOMAS KOVEL, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. DANIEL J. McNAMARA, Judge, presiding. Affirmed.

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

Plaintiff was injured on May 12, 1959, when a truck struck the rear of the automobile she was driving. The defendant, Ralph N. Budelman Excavating Company, was the owner of the truck and defendant, Thomas Kovel, was the operator of the truck and an employee of the excavating company.

Interrogatories were served upon the plaintiff on August 20, 1964. Answers were subsequently filed to the interrogatories on October 7, 1964. A witness, Wesley Simmons, was not listed by plaintiff as a person present at the scene of the occurrence, or as one having information concerning the circumstances surrounding the alleged occurrence. From the record it does not appear that Wesley Simmons, who is the husband of the plaintiff, was an occurrence witness.

On December 7, 1965, supplemental interrogatories were filed which sought the names of persons having knowledge of facts in issue. The interrogatories of December 7, 1965, were not answered by the plaintiff, but, again, it would appear from defendants' brief that objections to these last interrogatories were filed on January 10, 1966, and that no ruling upon these objections was had or asked for by either the plaintiff or defendants. The answers filed to the original interrogatories of October 7, 1964, merely gave the name and address of Wesley Simmons in answer to a question as to who owned the car which was driven by the plaintiff at the time of the accident. At the trial plaintiff called this witness to testify and he was permitted to testify to plaintiff's previous condition of well-being and her condition subsequent to the accident. Wesley Simmons is plaintiff's husband.

The case was submitted to the jury on the issue of damages only, the defendants having admitted liability.

The defendants contend that it was error for the trial court to permit Wesley Simmons to testify, and that it was prejudicial error to permit plaintiff's attorney to read to the jury a document not in evidence.

The first question presented to us is whether it was an abuse of the trial court's discretion to permit Wesley Simmons to testify.

It has been held that it is within the discretion of the trial judge to determine from the circumstances of each case that which constitutes compliance or noncompliance with Supreme Court Rule 19-11, (Ill Rev Stats 1965, c 110, par 101.19-11), and to determine what sanctions, if any, shall be imposed. Reske v. Klein, 33 Ill. App.2d 302, 179 N.E.2d 415.

The plaintiff's testimony covered the extent of her injuries, her absence from work as a result thereof, her pain and suffering, and her limited ability to do housework, in detail.

Wesley Simmons, her husband, testified that he lived at 2 S. 070 Valley Road, Lombard; that the plaintiff is his wife, and they have been married about eighteen years. Without specialized knowledge, he observed his wife's physical condition before the accident and it was perfectly normal, as far as he could see. After the accident she was pretty well bruised up and ached for three or four years, "some place in there." There were a lot of things she did before the accident which she could do only in a limited way after the accident, but she still did things around the house. She watched herself as to what she could do and "I helped her."

This testimony had been completely covered far more in detail by the plaintiff.

In the case of Granger v. Turley, 20 Ill. App.2d 488, 156 N.E.2d 610, the trial court permitted a witness to testify although his name was not included in the plaintiff's answer to defendants' interrogatories. The court in that case, on page 491, said:

"In our opinion, this evidence was merely cumulative. Assuming without deciding that it was error to admit this testimony, it was not reversible error because this testimony was corroborated by other witnesses."

Furthermore, when the defendants objected to the calling of Wesley Simmons as a witness, the court said: "That's what I mean — before he goes on if you want to ask for any additional time." The trial judge, no doubt, was prepared to give the defendants as much time as they desired to question this witness, or even to continue ...


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