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Rigor v. Howard Liquors

APRIL 3, 1973.

NATIVIDAD RIGOR ET AL., INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF THERESA RIGOR ET AL., PLAINTIFFS-APPELLANTS,

v.

HOWARD LIQUORS, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiffs, the wife and children of Peter Rigor, sued defendants Howard Liquors, Inc. (hereinafter referred to as Howard's) and Rose Kelley, d/b/a Kelley's (hereinafter referred to as Kelley's), in a dramshop action. Plaintiffs sought recovery for loss of support against Kelley's for the intoxication of John Mika who was the driver of an automobile involved in an accident. Plaintiffs also sought relief against Kelley's and Howard's for the intoxication of Peter Rigor, claiming that Rigor's intoxication caused him to become a passenger in the car driven by Mika. The jury returned a verdict of not guilty as to both defendants, and the court denied plaintiffs' post-trial motion. On appeal plaintiffs present these issues for our review:

1. Whether the trial court erred in failing to require defendants to complete the impeachment of plaintiffs' witness; and

2. Whether the trial court erred in admitting the testimony of a police officer who testified from his accident report.

The testimony of Peter Rigor and Police Officer Peter McElligott is pertinent to this appeal. Peter Rigor testified that on November 2, 1965, he was drinking at Howard's from 6 P.M. to approximately 8 P.M. After 2 or 3 beers he left Howard's and went to the race track where he remained for 2 races. He returned to Howard's at approximately 10:30, and drank 4 or 5 more beers. When Howard's closed, he went to a coffee shop, and at approximately 2:15 or 2:30 A.M., he went to Kelley's and had 3 or 4 more beers. Rigor testified that he saw Mika fifteen minutes after he entered, and Mika had 3 or 4 drinks. Mika and Rigor left Kelley's around 4 A.M. and Mika drove to Lindsey's tavern where Rigor had 3 or 4 more beers and Mika had 3 or 4 screwdrivers. Rigor stated at trial that Mika seemed groggy and sluggish after leaving Lindsey's at approximately 6:30 A.M. While driving Rigor back to his parked car near Howard's, Mika swerved his car to the right while trying to pass other cars, and struck a parked car from the rear.

During cross-examination of Rigor, defendants' counsel attempted to lay a foundation for impeachment by reading questions and answers from a deposition taken of Rigor on June 20, 1966. Rigor admitted coming in for the deposition, but his signature was not on the transcript. Plaintiffs' counsel asked defense counsel to identify the transcript; thereafter plaintiffs only objected to the form of materiality of the questions. The answers to the deposition read at trial showed that Rigor had previously said that he stayed at the race track for 7 or 8 races; that he had 3 more beers at Howard's after the track; that he went to Kelley's at 2:45 or 3:00 A.M. and had one beer there; that he did not know if Mika drank in Kelley's because he did not see him until nearly closing time; that upon leaving Lindsey's Mika looked "all right" to him; and that he did not know why Mika swerved the car before the collision.

After Rigor's testimony, defendants advised the court that they were unable to call the court reporter who had attended the deposition, but could produce another reporter to verify the accuracy of the deposition transcript. The trial court, however, ruled that defendants were not required to make an offer of proof because of plaintiffs' failure to object to the use or authenticity of the deposition.

Defendants called Officer McElligott who investigated the accident. He testified to details of the accident and the condition of the driver. McElligott stated that he arrived at the scene at 7:15 A.M., and that he signed the accident report. He then read the report to refresh his memory. He was asked how he checked the box in his report marked "Physical Condition," and he answered "normal." He also stated that he made no notation in his report concerning liquor. Plaintiffs' attorney objected continuously that the witness was reading from his report and that he had no independent recollection. The court repeatedly stated that the officer could testify from his report since he had made it. On cross-examination the officer testified that he had no independent recollection of the accident, and could not testify as to details not mentioned in his report; that all he could remember was arriving at the scene at 7:15. He then stated that he had an independent recollection of the "accident I handled, that I had taken the gentleman to the hospital." Plaintiffs' counsel asked questions concerning the weather and traffic conditions at the time of the accident and the officer referred to his report. Finally, the witness again testified that his present recollection was limited to the contents of the report and his arrival at the accident scene at 7:15. On redirect examination the officer acknowledged that he made the report at 8:30 A.M. of the day of the occurrence, while he had a present recollection of the facts. The court denied plaintiffs' motion to strike this testimony by again stating that the testimony from the report was admissible because it was the witness's report, he signed it, and at the time he signed it, it was an accurate recollection of what he had observed.

OPINION

Plaintiffs first contend that it was prejudicial error to allow defendants to lay a foundation to impeach a witness on a material matter, and then fail to offer proof of the allegedly impeaching statement. Defendants contend that no further proof of the deposition was required because plaintiffs never objected to the accuracy of the transcript, and never made a motion to suppress the deposition. In the alternative, defendants argue, that even if plaintiffs did not waive proof, Rigor admitted the most damaging deposition answers, and therefore, defendants were not required to offer proof of the impeaching statements.

• 1 Initially, we hold that Supreme Court Rule 211, *fn1 regarding waiver of errors and irregularities in depositions, is inapplicable in this case. We know of no situation where a party has the burden of raising an objection to the deposition in order to require the impeaching party to complete his impeachment by offering proof of the deposition. In Cibis v. Hunt, 48 Ill. App.2d 487, 199 N.E.2d 246, an unsigned deposition was used to support a motion for summary judgment, not for impeachment, and the objection to the use of the deposition concerned non-compliance with Rule 211 requiring a recital by the certifying officer that the party waived signature.

• 2 Supreme Court Rule 212 *fn2 provides that discovery depositions may be used to impeach the testimony of the deponent as a witness "in the same manner and to the same extent as any inconsistent statement made by a witness." The rule in Illinois regarding impeachment by a prior inconsistent statement is that, once counsel has laid a foundation for impeachment, he is under an obligation in law to offer proof of the allegedly impeaching statement. (Schoolfield v. Witkowski, 54 Ill. App.2d 111, 203 N.E.2d 460; Danzico v. Kelly, 112 Ill. App.2d 14, 250 N.E.2d 801.) The only exception to this rule occurs when the witness admits that he made the prior statement. Logue v. Williams, 111 Ill. App.2d 327, 250 N.E.2d 159.

• 3 In the instant case, defendants argue that they were ready and willing to tender proof of the deposition transcript, and that the trial judge stated that he would not require further proof. In addition, they maintain that the trial court's refusal to require completion of the impeachment was beneficial to plaintiffs and was prejudicial to defendants. However, it is clear that innuendoes involved in allegedly impeaching questions on a material issue are highly prejudicial. Miller v. Chicago Transit Authority, 3 Ill. App.2d 223, 121 N.E.2d 348; Ramseyer v. Illinois Central Railroad Co., 110 Ill. App.2d 95, 249 N.E.2d 120.

• 4, 5 The issues of Mika's intoxication and Rigor's intoxication were certainly important and material issues. Therefore, the basic question before us is whether Rigor's answers at trial admitted the prior inconsistent statements. The following answers were given by ...


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