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Benford v. Chicago Transit Auth.

JANUARY 5, 1973.

LUTHER BENFORD, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT W. TONDRYK, JR., Judge, presiding. MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Plaintiff brought suit against the Chicago Transit Authority for personal injuries suffered when a CTA bus struck his auto. The jury found in favor of plaintiff, returned a verdict of $2500 and the trial court entered judgment on the verdict. This appeal does not raise the issue of liability. Defendant appeals only from the trial court's exclusion of certain exhibits which defendant claims would have had the effect of reducing the amount of damages.

The excluded exhibits, Defendant's Exhibits Nos. 3, 4 and 5, consisted of certain documents kept by plaintiff's employer, the Hotpoint Electric Company. The documents were offered by defendant to show the number of days of work missed by plaintiff since the only other evidence relating to this issue was plaintiff's own testimony.

The documents were the following: Defendant's Exhibit No. 3 consisted of a printed form, signed by "manager-medical service" at Hotpoint, stating that plaintiff could return to work on "6-26-67." Defendant's Exhibit No. 4 consisted of a note from plaintiff's private physician, written on the physician's stationery, dated June 24, 1967, and signed by the doctor, and states:

"Above [plaintiff] involved in accident with injuries to head, back & rib cage on 6/10/67. He may return to work on 6/26/67."

Defendant's Exhibit No. 5 was entitled "Employee Attendance Record" and indicated plaintiff's daily attendance record for the years 1966, 1967 and 1968.

At trial defendant sought to introduce these exhibits as business records under Illinois Supreme Court Rule 236(a). (Ill. Rev. Stat. 1969, ch. 110A, par. 236(a).) Rule 236(a) states:

"(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term `business,' as used in this rule, includes business, profession, occupation, and calling of every kind.

(b) This rule does not apply to the introduction into evidence of medical records or police accident reports."

To establish a foundation for the introduction of these records defendant called a Mrs. Watson of the Hotpoint Company. Her position at Hotpoint was "personnel record clerk." She testified that she began her employment with Hotpoint on February 14, 1966. From that time until October of 1970 she worked in the billing section. She did not begin to work in the personnel department until October of 1970.

She testified that she had the care, custody and control of certain Hotpoint records.

She testified that Defendant's Exhibits Nos. 3 and 5 were made and kept in the ordinary course of Hotpoint's business. Mrs. Watson testified that Exhibit No. 4 was kept in the regular course of Hotpoint's business but was not made by Hotpoint.

Plaintiff's counsel objected to the admission of Exhibit No. 4 on the ground that the physician himself should have been called to testify. The motion was sustained. Plaintiff's counsel again objected when defense counsel proceeded to examine Mrs. Watson as to the contents of the tendered exhibits. Plaintiff's counsel objected on the ground that Mrs. Watson could not provide the requisite foundation for admission of the three records because she was not employed in the personnel department at the time the records were made. The objection was sustained and all three records were excluded as a result of that ruling.

At issue, then, is whether, in order to lay the foundation for the admission of a business record under Supreme Court Rule 236(a), the foundation witness must have been employed in that particular department at the time the record was made.

We believe that with respect to Exhibits Nos. 3 and 5 the ruling of the trial court was incorrect. With respect to Exhibit No. 4 we believe that his ruling was correct, but for reasons other than those ...


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