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Wilson v. Parker

MAY 5, 1971.




APPEAL from the Circuit Court of Lake County; the Hon. CLARENCE E. PARTEE, Judge, presiding.


This is a collision case in which the jury found for the defendant and the court entered judgment on the verdict.

The facts of the case are that E.B. Wilson, plaintiff, was a passenger in a car being driven by Bruce O. Badger on the 2nd of March, 1965. The plaintiff, Badger, and the other two occupants were non-commissioned officers stationed at Glenview, and had been to the Acey Ducey Club where they had had some drinks. Badger was driving his vehicle in a westerly direction on Willow road at or near the intersection of Sanders road. The defendant Parker was also driving westerly on Willow road and had decreased his speed. As he was making a right turn north into Sanders road he was struck by the vehicle being operated by plaintiff's driver, Bruce Badger. Wilson was injured and sued both Badger, the driver of the vehicle in which he was riding, and Parker, the driver of the other vehicle. Apparently, a settlement was effected with Badger and the trial proceeded against Parker. The testimony of all the witnesses was that the vehicle driven by Badger, in which the plaintiff was riding, struck the defendant Parker's car on the right hand door and quarter panel. He was traveling 40-45 m.p.h. It was an unilluminated corner; it was hazy and there were fog patches; and the accident occurred about 11:45 P.M. Neither the plaintiff nor the driver Badger saw defendant's vehicle until the time of the impact, nor did the other two passengers in Badger's car.

The first contention of the appellant is that the court improperly allowed a nurse to testify regarding her note made as to the plaintiff Wilson. This is known as a past recollection recorded. The old case of Diamond Glue Co. v. Wietzychowski (1907), 227 Ill. 338, 81 N.E. 392, sets forth the ground rules as to the admissibility of such evidence.

"Another condition under which a writing may be used is where the witness, after inspecting a writing, still has no independent recollection of the facts stated therein, but is able to state that he correctly reduced them to writing at the time of the occurrence or within such a time afterward that he had a perfect recollection of them. If the witness knows that the facts were recorded at the time or when they were fresh in his memory, and that the memorandum would not have been made unless he knew the facts therein stated to be true when it was made, he will be permitted to make use of it, provided the writing is produced with an opportunity for cross-examination as to it, so that the jury may also draw their conclusion as to the fact."

• 1 In the instant case the nurse testified that she made the entries in her handwriting on the hospital records and she stated specifically that the record was in her handwriting made at 5:45 A.M. on March 3rd, 1965, that if she wrote it down it was true, and that she did not remember attending Mr. Wilson. In this court's opinion this brings it within the doctrine of past recollection recorded. A proper foundation was laid.

In Stanton v. Pennsylvania R.R. Co. (1961), 32 Ill. App.2d 406, 178 N.E.2d 121, the court permitted a witness, a nurse, to testify from notations in her handwriting. The court held that the exhibits were admissible under the doctrine of past recollection recorded. The court held that the trial court was correct in permitting the contents to be read to the jury, the defendant having laid a proper foundation. The witness had testified the entries were made by her, that they were truthful, that she relied upon them as truthful and accurate.

In People v. Harrison (1943), 384 Ill. 201, at page 206, 51 N.E.2d 172, the court stated:

"The rule is that where there has been a writing made by a witness, or made at his direction at the time of the fact, for the purpose of preserving the memory of it, if at the time of testifying he can recall nothing further than that he had accurately reduced the whole transaction to writing, the latter may be admitted in evidence."

In Healy v. City of Chicago (1969), 109 Ill. App.2d 6, 248 N.E.2d 679, the court in reviewing the Diamond Glue case and People v. Harrison, stated that the written occurrence memorandum should have been admitted. The court went on to say that it was possible that the doctor might have received some information from someone other than the plaintiff which would only affect the weight to be given the doctor's testimony in its admissibility.

In Wolf v. City of Chicago (1966), 78 Ill. App.2d 337, 223 N.E.2d 231 we find that the emergency room nurse stated:

"She had no independent recollection of the incident and that she had to rely on the report made by her at the time plaintiff was admitted for emergency treatment."

She further stated that at some time the patient's history is taken from someone other than the patient. The court held that the hospital report of the nurse was used solely as a record of her past recollection. She verified the report, read from it on the witness stand, and testified to nothing from her own memory, and the court held the testimony was proper.

Counsel has cited Stewart v. Du Plessis (1963), 42 Ill. App.2d 192, 191 N.E.2d 622; Flesberg v. Prince Warehouse Co. (1962), 37 Ill. App.2d 22, 184 N.E.2d 813; Behles v. Chicago Transit Authority (1952), 346 Ill. App. 220, 104 N.E.2d 635. These three cases are distinguishable. Stewart v. Du Plessis has no authority in this regard. That case is not applicable because the defendant failed to offer any evidence as to who prepared the report in question. Likewise, Flesberg v. Prince Warehouse Co. is not applicable as an attempt was made to introduce the hospital record made by various people and was offered as a business record by the hospital librarian. The maker of the record did not testify as in the instant case. In Behles v. Chicago Transit Authority the court refused to allow evidence sought from three doctors recorded ...

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