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Premack v. Chicago Transit Authority

OCTOBER 20, 1971.

BENJAMIN PREMACK, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon RICHARD A. Harwood, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Benjamin Premack, commenced this action against the defendants, Chicago Transit Authority and Napoleon Smith, the bus driver, for personal injuries allegedly sustained while he was a passenger on a Chicago Transit Authority bus. The Court tried the case without a jury and entered judgment for damages in the amount of $7500 against both defendants.

The Complaint was filed on August 19, 1966. It alleged that on November 22, 1965, plaintiff was a passenger for hire on the bus, which was proceeding in a southerly direction on Clark Street, at or near the intersection with Wacker Drive; that while plaintiff was walking towards the rear of the bus, it suddenly and without warning jerked, throwing him with great force against parts of the bus and resulting in injuries to him. Defendant's answer, filed on September 8, 1966, alleged in material part that the bus was not moving, but was "stopped standing."

On January 31, 1967, plaintiff filed a series of written interrogatories to defendant Smith. In his answer, the defendant stated that the occurrence specified in the complaint took place "On Clark, between Wacker and Lake."

The record also shows that pursuant to the suggestion that Benjamin Premack died on December 20, 1967, an order was entered substituting Joseph G. Robinson, Administrator of the Estate of Benjamin Premack, as plaintiff.

The defendants contend that the Court erred in refusing to permit Napoleon Smith to testify upon the basis of section 2 of the Evidence Act, (Ill. Rev. Stat. 1969, ch. 51, par. 2,) and in the alternative that the damages awarded to plaintiff were grossly excessive.

Irene Karrels, called as a witness by the plaintiff, testified that she boarded the bus at Clark Street and Wacker Drive. She said that a man paid his fare and walked past her on the bus. The bus then gave a sudden violent jerk which raised her off her seat. She saw the man on the floor of the bus and heard him moan. She told the driver that the man was hurt and he quickly stopped the bus and came to the man's assistance. She placed the location of the bus at the time of the occurrence on Clark Street between Lake and Randolph. On cross-examination, she testified that the bus had moved a distance of almost a block before it jerked.

The defendant, Napoleon Smith, the bus driver, took the stand as a witness, but upon objection by plaintiff, he was barred from testifying under section 2 of the Evidence Act (commonly known as the "Dead Man's Act").

We first consider whether the Court improperly refused to permit Napoleon Smith to testify. The record reveals that at the trial plaintiff offered into evidence Interrogatory No. 8 which requested Smith to state "where the occurrence specified in the Complaint occurred." The defendant's answer to this interrogatory reads "On Clark, between Wacker and Lake." The defendants claim that this interrogatory is plaintiff's sole proof connecting the deceased with the man whom the witness Irene Karrels saw fall on the bus. We must reject this argument. It is clear from the pleadings that both parties proceeded to trial on the assumption that the plaintiff was on the bus driven by Napoleon Smith at the time he was injured. The defendants also stress that the allegation in their answer that the bus was "stopped standing" put into issue whether a moving bus had caused the deceased to fall. The defendants thus argue that by introducing the answer to the interrogatory into evidence, the plaintiff in effect called Napoleon Smith as his witness and thereby waived his right to urge Smith's incompetency.

The defendants seek to rely on the language of the first paragraph of Section 2 which bars a party from testifying where the opposite party is an administrator "unless when called as a witness by such adverse party." They advance the novel theory that by introducing the written answer given by the bus driver to plaintiff's interrogatory, plaintiff has in effect called Napoleon Smith as his witness and thereby waived his right to assert Smith's incompetency. They cite no case or statute to support this point, and we are unable to agree with it.

Defendants rely on Perkins v. Brown, 400 Ill. 490, 81 N.E.2d 207, wherein it is stated that, "The rule is that where a party, who is incompetent to testify for himself as to a transaction, is called as an adverse party and questioned concerning the same, he is thereby made competent to testify in his own behalf as to the whole of such transaction, although his incompetency is not removed as to other matters about which he was not interrogated by the adverse party." (p. 497.) In that case, however, the plaintiff called Brown as an adverse witness to testify as to matters at issue in the case. The introduction of an answer to an interrogatory containing an admission of fact was not involved. The same is true of Chabat v. Kelly, 72 Ill. App.2d 150, 218 N.E.2d 868.

• 1 The rule removing the disqualification of a witness when he is called by the protected party as an adverse witness applies only when he is called to testify as an occurrence witness. (Combs v. Younge, 281 Ill. App. 339.) If he is called for any purpose other than to testify as to material issues in the case, the disqualification is not removed. Thus in DeYoung v. Ralley, 329 Ill. App. 1, 67 N.E.2d 221, where the defendant in an action for personal injuries called the plaintiff as an adverse witness and interrogated her regarding her admission in a pretrial deposition that she had not seen the other car prior to the collision, the Appellate Court held that defendant's interrogation of the adverse witness solely in regard to the admission did not make her competent to testify generally in her own behalf. Similarly, in Merchants' Loan & Trust Co. v. Egan, 222 Ill. 494, 78 N.E. 800, where plaintiff introduced as an admission at trial defendant's testimony at a prior proceeding in Probate Court, the Court held that plaintiff had not "called" the defendant as an adverse witness so as to render him competent to testify on his own behalf. Likewise, in Garrus v. Davis, 234 Ill. 326, 84 N.E. 924, where the plaintiff in a will contest called a defendant beneficiary for the sole purpose of proving the genuineness of certain letters allegedly written by the witness to the testatrix, the Court held that the witness' incompetency was not thereby removed.

• 2, 3 The same result is required by the Supreme Court Rules, Ill. Rev. Stat. 1969, ch. 110A. Defendants rely on Rule 213(f) which provides that answers to interrogatories may be used in evidence to the same extent as a discovery deposition. While the taking of a discovery deposition does not make the deponent the deposing party's witness (Pink v. Dempsey, 350 Ill. App. 405, 113 N.E.2d 334), in general, the introduction of that deposition into evidence at trial does. Supreme Court Rule 212(e), however, specifically excepts depositions proving an admission from the general rule. As defendant Smith's answer to Interrogatory No. 8 was an admission against interest, it is our conclusion that its introduction into evidence at trial did not make him plaintiff's witness. Therefore, plaintiff did not, by its introduction, waiver his right to assert the bar of Section 2 against defendant's later testimony on his own behalf.

The defendants raise as a second ground another and separate reason why Smith was a competent witness. When plaintiff called Dr. Shapiro, Premack's physician, defendants objected that if the doctor's testimony were admitted, then under Section 2 the defense should be allowed to call Smith as a witness. The objection was overruled. The doctor testified that the patient informed him that on the previous day he had boarded a bus at Wacker and Clark; that as he was walking toward his seat, the bus started off with a violent jerk, causing him to be thrown against a post and to the floor; that following the occurrence he was taken ...


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