Appeal from the Circuit Court of Will County, Twelfth Judicial
Circuit; the Hon. ROBERT E. HIGGINS, Judge, presiding. Judgment
reversed and remanded with directions.
Rehearing denied November 12, 1970.
Daisy Drehle, Administratrix of the estate of Carl Drehle, deceased, brought this action in the Circuit Court of Will County for wrongful death against Frances Fleming, Administrator of the estate of Michael Fleming, deceased. The jury found the issues in favor of defendant, the court entered judgment thereon, denied plaintiff's post-trial motion, and this appeal follows.
On July 17, 1965, at about 6:30 a.m. a four-car collision occurred in Will County on I-55 south of the Des Plaines river bridge. Seven persons died in the collision, including plaintiff's decedent, Carl Drehle, and defendant's decedent, Michael Fleming.
The collision occurred in the southbound lanes of I-55 and it is undisputed that the collision resulted from a car being driven the "wrong way" or north on the southbound lanes. According to plaintiff's complaint and theory of the case, the northbound vehicle was driven by Michael Fleming. It was defendant's contention that it was not Fleming who was driving north, but rather Carl Drehle, plaintiff's decedent.
Carl Drehle, aged 50, resided in New Lennox, Illinois. He was a construction worker employed on a pipe line at the Greer School in the Coal City area. He left for work on July 17, 1965, at about 6 a.m. alone in his car, a 1958 Ford, white over gray.
According to the testimony of William Fleming, a resident of Chicago, his son Michael was home on furlough from the Navy. Between 8 and 8:30 p.m. on July 16, 1965, Michael requested and was granted permission to use his father's car, a 1958 gray Buick. The son informed his father that he might go to a party with friends. He drove off in the car alone, did not return home again that night, and was not again seen alive by his father.
When the bodies of the deceased persons were removed from the crash scene, it appeared that Drehle was alone in his car but that in addition to Fleming, there were three other passengers in his car who were also killed in the crash.
Five witnesses testified for plaintiff and four witnesses testified for defendant concerning events occurring just prior to the collision, tending to support the opposing view of each party. Two of plaintiff's witnesses, husband and wife, were the driver and passenger in the fourth car involved in the collision. They were headed south and their testimony tended to indicate that it was Drehle in his Ford who passed them just prior to the crash in which both their car and the Drehle car were involved. The other three witnesses for plaintiff and the four witnesses for defendant testified to meeting and avoiding a northbound car traveling in the southbound lanes. The three witnesses for plaintiff indicated that the northbound car was the Fleming Buick and the four for defendant that it was the Drehle Ford. The testimony of these witnesses is irreconcilable and while such testimony has a tendency to prove which vehicle was northbound, it is subject to the frailties incident to casual observation.
James Stannard Baker, an accident reconstruction expert, testified on behalf of plaintiff and offered the opinion based on the facts he observed, that the Drehle car was southbound and the Fleming car northbound at the time of the collision.
After judgment was entered on the jury's verdict of not guilty, plaintiff moved for a new trial, arguing initially among other reasons, that the trial court erred in refusing certain of plaintiff's instructions. Thereafter, plaintiff's post-trial motion for a new trial was amended to include as reasons therefor that material evidence had been withheld by defendant or alternatively, that the plaintiff had discovered new evidence requiring a new trial.
According to the amended post-trial motion and affidavits in support of and in opposition thereto, it appears that a companion action had been filed by other parties injured in the collision. In such action which was pending and undisposed of at the time of the trial in the case at bar, the estates of Drehle and Fleming were each named defendant. On April 30, 1968, some three months after the verdict in the instant case was returned, interrogatories in the companion case resulted in the production of a statement of one Pepole, dated July 28, 1965. The substance of Pepole's statement was that he had been with Michael Fleming and the other occupants of the Fleming car at a party in a Chicago motel. The party which lasted from approximately 12:30 to 4:30 a.m. on the morning of July 17, 1965, was for the purpose of celebrating the departure of two friends into service. According to Pepole, he saw Fleming and his companions leave the Chicago motel in the Fleming car, and, at the time, (4:30 in the morning) Fleming was driving.
Defendant's insurance carrier employed separate and independent law firms to defend each of the cases. The Pepole statement was originally produced by Frank Pause, Attorney for the Fleming estate in the companion action, and it is this statement, together with the accompanying circumstances which plaintiff claims in its amended motion for a new trial, requires the granting of such a new trial.
In November, 1967, plaintiff served Monier type interrogatories on defendant's counsel which were made reciprocal by the court. Reciprocal supplemental interrogatories were served in January, 1968, just before the trial commenced. On December 15, 1967, counsel for each of the parties met, exchanged statements and other information. The Pepole statement was not given to plaintiff's ...