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Dispenza v. Picha

AUGUST 28, 1968.

NICHOLAS R. DISPENZA, ET AL., PLAINTIFFS-APPELLANTS,

v.

GEORGE PICHA, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Judgment affirmed.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT.

Plaintiffs brought personal injury actions to recover damages occasioned in an automobile accident. The jury returned a verdict in favor of the defendant in each case and the plaintiffs' motion for a new trial was denied. The plaintiffs claim the trial court committed error in failure to grant a new trial for the errors alleged in the post-trial motion.

The evidence in the case indicated that the defendant was traveling east in his car on a through highway. The plaintiffs' car, going north, proceeded out from a stop sign in front of the defendant in such a manner that the front of the defendant's car struck the left-hand side of the car containing the plaintiffs. The impact occurred in the eastbound lane of the road the defendant was traveling on and in the northbound lane of the highway the plaintiffs were traveling on.

The plaintiffs were unfamiliar with the route they were traveling. The accident occurred shortly after midnight following a charity event at the Butterfield Country Club in Du Page County. The plaintiffs were returning to Chicago, where they resided, and the driver of their car, Nicholas R. Dispenza, did not know the route home. They were following another car being driven by someone familiar with the road.

No question is raised on the pleadings and no contention is made that the verdict is contrary to the manifest weight of the evidence. The errors complained of relate to the admission of testimony of the investigating deputy sheriff on cross-examination by defendant's counsel concerning statements on the sheriff's report attributed to the defendant at the scene of the accident; the giving of certain instructions at the request of the defendant and the refusal to give certain instructions tendered by the plaintiffs; and the alleged prejudicial effect of a portion of the opening statement of defendant's counsel to the jury.

The investigating deputy sheriff was called as a witness on behalf of the plaintiffs and was asked, on direct examination, concerning a conversation with the defendant Picha at the scene. His testimony was to the effect that he believed Picha said he did not see the (plaintiffs') car and that is what caused the accident. The deputy had previously, at the request of plaintiffs' counsel, referred to his report to refresh his recollection concerning occupants of the plaintiffs' car. When cross-examined, defendant's counsel asked him how his report was made and he indicated it was made from a freehand report in pencil that he made at the scene. He further stated that his report identified the vehicles by numbers, and No. 1 was the Ford automobile of the defendant and No. 2 was the Dispenza car. Thereafter defendant's counsel said: "Take a look at that report and see if Car No. 1 didn't tell you — that would be Mr. Picha, driver of Car No. 1 — . . . Officer, did not Driver No. 1 state to you that Car No. 2 did not come to a complete stop and pulled in front of Car No. 1? . . ." This question was objected to on the ground that the statement when made would be self-serving.

Since plaintiffs' counsel, on direct examination, had inquired about a statement attributed to the defendant at the scene in a conversation between the officer and the defendant, defendant's counsel had the right, without question, to inquire into any further aspects of this conversation. The cross-examination related to the movement of the vehicles involved as described by the defendant at the scene, which was the same subject matter as the question asked by defense counsel. When the deputy answered the question in the affirmative and admitted that the defendant at the scene had said the plaintiffs' car had pulled in front of him, despite the self-serving nature of the defendant's statements, they were admissible as part of the transaction inquired into by the plaintiff.

Objection was made also that the question of defendant's counsel was an attempt to give the sheriff's report the status of direct evidence. The question itself is not clear. However, the trial court asked defendant's counsel, "Are you asking him whether or not car number one said something?" and prior to the witness' answer, defendant's counsel indicated that was the purpose of the question.

Viewed in the context of the trial, prior use of the police report for refreshing recollection, the testimony of the witness on direct examination, and the colloquy between court and both counsel, the question asked was not objectionable and the answer given was admissible.

In a similar situation, when a court reporter was asked on direct examination to relate certain answers a defendant gave at a coroner's inquest, the trial court, on cross-examination, allowed the witness to give all the defendant's answers on the same subject which she had taken down at the inquest. The Appellate Court held:

"It is the contention of the plaintiff that to permit this question and answer was error, as it was a self-serving statement of the defendant. The defendant, on the other hand, urges that the trial court correctly permitted the question as being within the scope of the direct examination, and a matter to which the door had been opened by the plaintiff on direct examination. This latter position is more tenable, as the cross-examination permitted a full disclosure of what Short told the coroner's jury he saw at the time of the accident. The plaintiff might well have anticipated such disclosure in calling the court reporter as a witness.

"In Chicago City Railway Co. v. Creech, 207 Ill. 400, at page 402, 69 N.E. 919, the Court said: `The scope of a cross-examination is necessarily largely within the discretion of the trial court, being governed by the direct testimony of the witness and other circumstances attending the giving of his evidence, and it has been held to be erroneous for the trial court to restrict the cross-examination to the extent of preventing the party from going only into the matters connected with the examination in chief, it being his right to elicit suppressed facts which weaken or qualify the case of the party introducing the witness or supporting the case of the party cross-examining. A witness may be cross-examined as to his direct testimony in all of its bearings, and as to whatever goes to explain or modify or discredit what he has stated in his first examination.'

"In this regard the following from Phares v. Barber, 61 Ill. 271 is influencing. The court said at page 275 of 61 Ill: `It is also a well settled rule that, where a witness details a conversation, the party against whom the evidence is offered is entitled to the whole of the conversation, and any action of the court which prevents its obtainment violates this rule of law.'" . . . Star Serv. & Petroleum Co. v. Short, 344 Ill. App. 280, 100 N.E.2d 664, 665-66 (3d Dist 1951).

The trial court gave, at defendant's request, an instruction in the form of IPI 60.01 on the statutory right-of-way at a through ...


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