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Noumoff v. Rotkvich

SEPTEMBER 20, 1967.




Appeal from the Circuit Court of Cook County, Law Division; the Hon. MEL R. JIGANTI, Judge, presiding. Reversed and remanded.


Rehearing denied October 23, 1967.

Plaintiff, Sylvia Noumoff, appeals from the judgment entered for the defendant and from the denial of her motion for a new trial after a jury verdict in favor of the defendant, Dorothy Rotkvich. This was an action brought by the plaintiff to recover damages under the Dram Shop Act (Ill. Rev Stats 1957, c 43, § 135) *fn1 against Nicholas Rotkvich, Dorothy Rotkvich, Michael D. McFarland and Loretta McFarland as defendants. The latter two defendants were covenanted out and are not now parties to this action. Nicholas Rotkvich died during the pendency of this action and the cause proceeded to trial against Dorothy Rotkvich alone. In this appeal plaintiff requests that the judgment be reversed and a new trial granted, alleging various improprieties in the proceeding below which deprived her of a fair trial. In the alternative plaintiff requests this court to enter a judgment notwithstanding the verdict.

At the trial plaintiff testified that on the evening of November 14, 1958, she was driven to Nick & Dorothy's tavern (owned by Nicholas and Dorothy Rotkvich) by Michael McFarland where they spent several hours, but not in the company of each other. She further testified of the circumstances when they left the tavern:

"Mr. McFarland was walking behind me. I got in on the passenger side of the car. Mr. McFarland got in on the driver side. The car was unlocked. He started to drive, stopped at the corner and turned south on Commercial Ave. Commercial Ave. runs north and south. After we got on Commercial Ave. he was driving very fast. I told him to slow down that he was speeding. I then smelled a heavy odor of liquor. He looked dopey like and I told him I wanted to get out and take a cab. I have ridden in automobiles before. It is my opinion he was going about 45 or 50 miles per hour.

". . . It was at 104th Street when I told him to slow down and be careful because he was driving so fast. It was just a matter of seconds after I told him to slow down and be careful that we crashed. The car veered off and crashed into a utility post."

Michael McFarland testified and admitted that he had been at the tavern with plaintiff and that he drank "three or four beers." He further stated:

"When I left the tavern I was with Miss Noumoff. The weather was raining at the time. When I left the tavern my opinion was that I was sober. . . .

"I can't recall who got in [the car] first. . . . [A]s we turned the bend, right around 104th and Torrence, . . . a car was coming at me . . ., so I hit the wheel, and I must have hit it too hard. . . . I turned the wheel, and I turned it too quick, and the wheels skidded on the wet pavement, and that is when we collided with the lamp post."

Francis Gaffney, a police officer who investigated the accident in which plaintiff and McFarland were involved, also testified at the trial. He identified his signature on a police report of the accident (marked as Defendant's Exhibit Number 1 for identification) and stated that the report was accurate when made. While Officer Gaffney then testified as to McFarland's sobriety and physical condition at the time of the accident, it is unclear from the record whether the witness was testifying from his own recollection, from recollection refreshed by the police report or by reading from the police report itself. Subsequent to the testimony of Officer Gaffney defendant requested that the police report be admitted into evidence, but the request was denied. Defendant later adduced a copy of the report with a blocked-out portion which, over the strenuous objection of plaintiff, was admitted into evidence (Defendant's Exhibit Number 2). This exhibit contained two boxes. The first was entitled "sobriety condition" in which was checked "ability not impaired." The second box was entitled "physical condition only" in which was checked "apparently normal."

In contending that she did not receive a fair trial plaintiff contends, inter alia, that the introduction into evidence of Defendant's Exhibit Number 2 (the blocked-out portion of the police report) was prejudicial error.

In admitting the report as blocked out by defense counsel into evidence, the trial judge relied upon the doctrine of past recollection recorded. The basis for admitting a document into evidence under that doctrine was set forth by the Supreme Court of Iowa in State v. Easter, 185 Iowa 476, 170 N.W. 748, 749:

"Before a memorandum of this kind is admissible to prove the existence of a fact therein recorded, it must be made to appear that the fact therein recorded was correctly entered, and that the memorandum speaks the truth touching the disputed matter. It does not, of itself, prove the truth of the matters therein stated. The truth must be found in the testimony of some living witness who knows and can say that at the time the record was made he had personal knowledge of the matters therein recorded, and that he made, or caused it to be made, as a record of facts at the time within his knowledge. He may not be able to recall the transaction, by effort or memory; yet if he knows that the matters therein recorded were, at one time, within his knowledge, and that while so within his knowledge he made this record, that it was then his purpose or duty to truthfully record the facts therein stated, then the memorandum becomes evidence of the fact, not by reason of its recitals, but because by the testimony of the living witness, it is made reasonably certain that it speaks the truth."

The limited circumstances under which the document is admissible are set forth in Stanton v. Pennsylvania R. Co., 32 Ill. App.2d 406, 409, 178 N.E.2d 121, where the court quoted with approval from Diamond ...

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