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Vancil v. Fletcher

DECEMBER 21, 1967.




Appeal from the Circuit Court of Jackson County, First Judicial Circuit; the Hon. EVERETT PROSSER, Judge, presiding. Affirmed.


This is an appeal from a judgment for the defendants in an action for personal injuries.

The occurrence in question involved a collision wherein the plaintiff, Janice Vancil, was riding as a guest passenger in the automobile of the defendant, Charles Mitroka. The automobile driven by the defendant Mitroka, collided with an automobile driven by the defendant, Ed Fletcher, at the intersection of West Main and Oakland Street in Carbondale, Illinois, on May 19, 1963. The plaintiff was riding in the back seat of defendant Mitroka's automobile on the right side. The plaintiff's husband was also seated in the back seat and the defendant Mitroka's wife was seated in the front passenger seat. Two small children of the parties were also riding in the automobile, one in front and one in the rear. The defendant Mitroka was driving his automobile east on West Main Street. He approached the intersection of West Main at approximately 4:30 p.m. It was a "nice day" and the road was dry. Upon approaching the intersection, the traffic signal indicated red and Mitroka stopped at the signal in the left lane next to the center. There were two eastbound lanes and two westbound lanes on this portion of West Main Street.

While stopped at the intersection waiting for the light to change, a car on the opposite side of the intersection in the inside lane indicated an intention to turn left to the south. When the light turned green, the defendant Mitroka commenced a turn to the left. Mitroka testified that before making his turn he saw no traffic in the outside, or north, lane of the westbound traffic, however there were six to eight cars lined up in the inside lane on the opposite side of the intersection. After Mitroka got partly into the intersection and while starting to make his left turn, the plaintiff as well as the plaintiff's husband, testified that they observed the automobile driven by the defendant Fletcher approaching from the east in the outside westbound lane. The plaintiff testified that she observed the Fletcher car 75 feet east of the intersection and was of the opinion that it was traveling 40 miles per hour. The plaintiff's husband also stated he first saw the Fletcher automobile about 75 feet east of the intersection. Neither the plaintiff nor her husband made any comment to their driver Mitroka but continued to watch the Fletcher car upon its collision course. Neither of the defendants, Mitroka or Fletcher, decreased the speed of his vehicle prior to impact. The front end of the Fletcher vehicle struck the right rear quarter panel of the Mitroka vehicle.

As a result of the collision, the plaintiff received multiple contusions and abrasions and lumbosacral sprain.

The plaintiff's complaint, as amended, alleged willful and wanton misconduct against Mitroka in driving his automobile and negligence against Fletcher in driving his automobile. The cause also includes a counterclaim by Mitroka against Fletcher for property damage to his automobile. Mitroka's counterclaim alleged negligence of Fletcher in driving his automobile. The jury rendered a general verdict in favor of both defendants and for defendant Fletcher on the counterclaim of Mitroka. In answer to three special interrogatories the jury also indicated: (a) that the defendant Fletcher was guilty of negligence, (b) that the counterplaintiff Mitroka was guilty of contributory negligence, and (c) that the defendant Mitroka was not guilty of willful and wanton misconduct. This appeal is taken by the plaintiff on the judgment rendered on the verdicts. No appeal is taken on the counterclaim.

In support of the plaintiff's effort to reverse the judgment, the plaintiff alleges that the trial court erred in denying plaintiff's post-trial motion for judgment notwithstanding the verdict against both defendants and that the trial court erred in denying plaintiff's post-trial motion for a new trial against both defendants. In support of the latter motion, the plaintiff alleges, that the jury's answer to the Special Interrogatories and their verdict was against the manifest weight of the evidence, the defendant Mitroka's use of improper impeachments, and that the trial court erred in denying directed verdicts against both defendants.

Turning first to the specific allegation of errors, the plaintiff alleges six specific incidents of improper impeachment by the defendant Mitroka. The first alleged error concerns the testimony of the witness Robert Vancil, the husband of the plaintiff. The witness, Robert Vancil, was called to the witness stand by the defendant Mitroka during the presentation of the defendant Mitroka's case. The defendant Mitroka initially sought to call Robert Vancil for the purpose of cross-examination but after an exchange between counsel without any ruling by the court, counsel for Mitroka stated he would call Robert Vancil as his own witness. It might be noted at this point that Robert Vancil was originally a party plaintiff to the cause but had been dismissed prior to trial. The witness had also previously testified as a witness in the plaintiff's case.

The first question asked of the witness Robert Vancil was whether he had discussed with his wife's employer the reason for her ceasing her employment to which the witness replied in the negative. The witness was then asked if his wife ever told him where the Fletcher automobile came from immediately before the collision. The witness replied that they had discussed it but no definite answer was reached. The witness was then reminded of a deposition taken earlier in the case and then asked if he had been asked the same question during the deposition and he replied that she had told him she thought it came from the other lane of traffic but was not sure. The witness replied that he may have made that answer. No further questions were asked of the witness and objections by the plaintiff that the defendant was impeaching his own witness was overruled.

[1-3] We do not consider that these questions amounted to impeachment, and even though Mitroka could not impeach a witness called by him, he had a right to appeal to the witness's conscience and refresh his memory, and such procedure was not prejudicial.

The next alleged erroneous impeachment also concerns the witness Robert Vancil during cross-examination by counsel for the defendant, Mitroka, while testifying in the plaintiff's case. Here again the witness was asked whether his wife, the plaintiff, ever made any statement to him as to where the Fletcher car was when she first saw it to which the witness answered, "No sir." The witness was then handed a document marked "Defendant Mitroka's Exhibit No. 3," which was never offered for admission into evidence, and asked if the document refreshed his recollection. After examining it the witness stated he couldn't read the writing of the document but that the signature appearing thereon looked like his own. The witness was then asked again whether his wife ever made the statement to him that the Fletcher vehicle pulled from the inside lane of traffic into the outside lane and just kept coming. The witness answered that she might have. The latter was asked and answered without objection.

The plaintiff urges that the foundation for impeachment was laid but no impeachment evidence was ever offered. Such evidence consists of evidence that the witness made a statement on a previous occasion which is inconsistent with his testimony at the trial. Such evidence is permissible to cast doubt on the credibility of the witness. Before such evidence may be introduced, a foundation must be laid consisting of calling the witness's attention to the time, place and persons present when such statement was made or in the case of a written instrument by identifying the signature, Podenkirk v. State Farm Mut. Auto Ins. Co., 325 Ill. App. 421, 60 N.E.2d 269 (1945).

In the present case, the witness was not asked if he had made a particular statement at a particular time in the past but was handed a document and asked if the document refreshed his recollection. The witness was then asked the same question without objection by the plaintiff. Such procedure is not impeachment by proof of prior inconsistent statement and whatever other objection the plaintiff may have had, she failed to make.

In the remaining incidents of alleged erroneous impeachment, the plaintiff alleges that the defendant laid the foundation for impeachment but failed to follow up with proof of the prior inconsistent statement. We have examined the record in each of the incidents and find that the witness did not deny making the previous statement but was equivocal in his answer to the effect that he may have made the previous statement. No proper foundation was laid for the introduction of the prior statement, and as a result it would not have been admissible if offered. In view of the equivocal answers, it was the defendant's ...

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