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Ferrer v. Vecchione

JULY 31, 1968.

ERASMO FERRER, A MINOR, BY HIS MOTHER AND NEXT FRIEND, ERMA FERRER, PLAINTIFF-APPELLEE,

v.

CHUCK VECCHIONE AND JOSEPH VECCHIONE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. EDWARD R. FINNEGAN, Judge, presiding. Reversed and remanded with instructions.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Defendants appeal from a judgment in the sum of $150,000 entered upon a jury verdict in favor of plaintiff for injuries he sustained when struck by an automobile driven by defendant Chuck Vecchione (hereinafter referred to as Chuck). Plaintiff sought to establish the liability of Joseph Vecchione, Chuck's father, (hereinafter referred to as Joseph) on the principle of respondeat superior. On appeal defendants contend that their case was prejudiced (1) by improper cross-examination and (2) by plaintiff's closing argument to the jury. Defendant Joseph Vecchione also contends that the judgment against him was not supported by sufficient evidence and that a finding of no liability should be entered on his behalf.

Plaintiff received his injury in an accident which took place during the daylight hours on April 21, 1961. Plaintiff, then four years old, was crossing Jackson Boulevard near the intersection of Jackson and Damen Avenue in the company of his father when he was struck by a car driven by defendant Chuck Vecchione. Plaintiff sustained a fractured skull requiring the insertion of a metal plate. There was medical testimony presented at the trial that it was not possible to predict the duration of the resulting nausea and headaches but that plaintiff still suffered these symptoms and that there was a twenty percent chance plaintiff would develop epilepsy. There was some conflict as to whether plaintiff was crossing at the crosswalk or whether he had run out from between parked cars as well as to whether or not defendant had a green light. The investigating officer testified that at the hospital after the accident Chuck appeared confused, and his eyes were red but that he was not intoxicated. Chuck testified that his eyes were red because he had cried a great deal after the accident. The sufficiency of the evidence establishing the liability of defendant Chuck is not questioned.

Defendants first argue that they were prejudiced by repetitive cross-examination of Chuck about his use of drugs in view of Chuck's denial of such use and the failure to impeach or refute his negative answers. The questions were:

Were you taking anything at all that could influence your judgment or make you confused? [Objection sustained.]

On April 21, 1961, were you using or were you in the habit of using medicine or drug of any kind? [Objection sustained.]

With regard to your physical condition at the time that you gave the deposition, were you at that time using any drug of any kind? [Witness answered no.]

Had you been using any drugs before the time of the deposition? [Objection overruled. Witness answered no.]

As you are now on the witness stand and you are sworn and giving testimony, from the time of the deposition that you gave in 1965 until this time have you used any drugs of any kind? [Objection overruled. Witness answered no.]

While defending his right to pursue this cross-examination, plaintiff's counsel said in the presence of the jury:

All right. But I want to ask him with regard to these habits, if I may sir?

Plaintiff now urges that narcotics use is a legitimate area of inquiry, citing People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615. However, in arguing to the trial judge that he should be permitted to pursue this line of questioning, plaintiff's counsel asserted that these questions were necessary to lay a foundation for subsequent impeachment. Thereupon the court overruled defendants' objections. The following questions were then asked and answered in the negative:

[F]rom the time of the deposition that you gave in 1965 until this time have you used ...


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