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Kirkwood v. Checker Taxi Co.

MAY 18, 1973.

HELEN KIRKWOOD, BY JOHN LEWIS KIRKWOOD, ADMR. OF THE ESTATE OF HELEN KIRKWOOD, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

CHECKER TAXI COMPANY ET AL., DEFENDANTS-APPELLANTS. ROBERT ARNOLD ET AL., PLAINTIFFS-APPELLEES,

v.

CHECKER TAXI COMPANY, DEFENDANT-APPELLANT.



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

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 27, 1973.

On December 29, 1964, a taxi owned by defendant Checker Taxi Company and operated by Edward Stoakley, in which plaintiff Helen Kirkwood, deceased at the time of trial, and her grandson Wayne Harris were passengers, was involved in a collision on Congress Street near Clark Street with an Oldsmobile driven by plaintiff Robert Arnold, in which plaintiff Willa Hairston was a passenger.

The suit brought by the taxi passengers was consolidated with the suit of the Oldsmobile occupants. In a jury trial verdicts were directed against defendants Checker and Stoakley on the issue of liability as to the taxi passengers and the jury assessed damages of $7250 to the Estate of Kirkwood and $200 to Wayne Harris, a minor. The jury also found against the defendants in the suit of the Oldsmobile occupants and assessed damages of $700 to Robert Arnold and $600 to Willa Hairston. From the judgments entered on these verdicts defendants appeal.

Stoakley testified he was eastbound on Congress and intended to turn right at Clark but, before he started to turn and while he was in the second lane from the curb, his taxi was struck on the right side by Arnold's car which also was eastbound and had been in the curb lane. He testified that his taxi was at all times in the second lane and still there when the vehicles came to rest at which time the left front of the Oldsmobile was also in the second lane. Arnold testified that the taxi turned into his lane and struck the left side of his car and that he was always in the curb lane and was still in the curb lane when the vehicles came to rest with the right front of the taxi also in the curb lane at that time. Hairston, Arnold's passenger, also testified that the taxi turned into their lane of traffic. She didn't get out of the car to look at the vehicles afterwards. Police officer Partillo testified that when he arrived at the scene the Arnold car was in the curb lane and the right front fender of the taxi was also in the curb lane. All occurrence witnesses testified the vehicles moved after the impact and there was testimony from Arnold and Hairston of a second impact.

During the trial plaintiffs called Mrs. Billie Stratton to the stand and defendants objected because her name had not been provided in answers to interrogatories served five months prior on Arnold and Hairston. The trial judge allowed defendants' attorney a five minute interview with the witness after which she was allowed to testify over the objection of the defendants. She stated that she was the sister of Arnold and was in a car with three other persons which was travelling behind the Checker Taxi cab and she saw the taxi turn from the second lane and strike her brother's car which was in the curb lane. She testified to only one impact and that the vehicles moved to the right after that impact.

The defendants first allege the trial judge erred in allowing Mrs. Stratton, a surprise witness, to testify.

Supreme Court Rule 201(b)(1) provides "* * * a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action * * *." Rule 213(a) provides that "* * * a party may direct written interrogatories to any other party" and Rule 213(c) requires that within 28 days after service of the interrogatories on a party, he shall file a sworn answer or an objection to each interrogatory. Rule 219(c) provides that if a party unreasonably refuses to comply with the rules the court may enter such orders as are just including an order barring a witness fom testifying.

Plaintiffs contend that the trial judge correctly allowed the witness to testify because where no compliance order was sought or obtained by defendants the failure to answer was not an "unreasonable refusal." We disagree with this contention.

• 1 We believe it to be well established that there are a number of factors to be considered in determining whether the exclusion of a witness is an appropriate sanction to impose when her name has not been furnished. Among the factors our courts have considered are: the surprise to the adverse party, the prejudicial effect of the testimony, the nature of the testimony, the diligence of the adverse party, the timely objection to the testimony and the good faith of the party calling the witness. Carlson v. General Motors Corp. (1972), 9 Ill. App.3d 606, 289 N.E.2d 439; Buckler v. Sinclair Refining Co. (1966), 68 Ill. App.2d 283, 216 N.E.2d 14.

In this case we note that Mrs. Stratton was the only non-party witness to the accident to testify. She was the sister of Arnold, worked in the same plant with him and she spoke to him at the scene of the accident so that it may reasonably be inferred that he knew she had some knowledge of the occurrence. It is also noted there were three other persons in the car with her who worked in the same plant and that they were the same three fellow workers Arnold had testified he saw at the scene of the accident. The failure to answer the interrogatories therefore failed to disclose not only the name of Mrs. Stratton, but also resulted in the non-disclosure of the names of her co-passengers prior to trial. Furthermore, the record discloses defendants were surprised and that a timely objection was made to the testimony of Mrs. Stratton. We believe her testimony was prejudicial because, she being the only non-party occurrence witness, it is reasonable to assume that the trial judge relied heavily on her testimony in directing the verdicts on the liability issue. Plaintiffs' lack of good faith is strongly indicated, not only because Arnold must have known Mrs. Stratton was a witness, but he would also have known that the other three occupants of her car, who were co-workers of Arnold and Hairston, must have had some knowledge of the occurrence. In addition, he failed to disclose and identify the pedestrian at the scene who wrote his name on a piece of paper which at the time of trial Arnold said was some place in his home.

In Monier v. Chamberlain (1966), 35 Ill.2d 351, 361, 221 N.E.2d 410, 417, the court stated that "ascertainment of truth and ultimate disposition of the lawsuit" is better served when parties are well educated as to their respective claims in advance of trial. See also Drehle v. Fleming (1970), 129 Ill. App.2d 166, 171, 263 N.E.2d 348, 350, where it was stated, "[T]he principle is now well established that the purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable."

In the light of these principles and because the factors to be considered in determining sanctions weigh heavily in favor of her exclusion as a witness we do not believe that the five minute interview of Mrs. Stratton granted by the court was an adequate resolution of the interrogatory deficiencies. In Rosales v. Marquez (1965), 55 Ill. App.2d 203, 208, 204 N.E.2d 829, it was stated "an interview with a witness shortly before he takes the stand is not always a satisfactory substitute for a pretrial deposition. A deposition not only permits a thorough examination under oath but also provides a provable record that can be used for impeachment purposes: it may disclose facts that should be investigated, information that should be verified, leads to other witnesses that should be pursued * * *; it may also reveal data about the witness which would influence the selection of jurors."

• 2 However, although a recess for deposition would often be a suitable sanction, we believe it would have been inappropriate here as the defendants would have required additional time to arrange to take the depositions of the three persons who were with Mrs. Stratton and whose names would have been revealed in her deposition as they were in her testimony. But the record does not disclose that the trial judge was made aware before Mrs. Stratton testified, either prior to or after the five minute interview, that she was an occurrence witness and a sister of Arnold or that there were three other probable witnesses with her. Had this information been given him, we believe the trial judge should have excluded the witness. However, since the appropriateness of sanctions is within his discretion (Ferraro v. Augustine (1964), 45 Ill. ...


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