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Smith v. Williams

DECEMBER 10, 1975.

LINDA C. SMITH, PLAINTIFF-APPELLANT,

v.

RICHARD A. WILLIAMS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT GAGEN, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

This case arose from a collision between automobiles driven by plaintiff, Linda C. Smith (now Parmeley), and defendant, Richard A. Williams, on September 20, 1969. The defendant admitted liability and the sole issue presented to the court was the extent of injury sustained by plaintiff as a consequence of the collision. The jury awarded the plaintiff $100.

Plaintiff brings this appeal and raises three issues: (1) whether the court erred in permitting witness Robert Martin to read from records not admitted in evidence; (2) whether the court erred in permitting Dr. John Tierney to read from a report of Dr. Silvana Menendez, which was not admitted into evidence; and (3) whether the verdict upon which the judgment was entered is against the manifest weight of the evidence.

Plaintiff's first contention is that the trial court erred in allowing Robert V. Martin to testify concerning the attendance records of plaintiff at the Manpower Training Center in East St. Louis, Illinois. Mr. Martin appeared as a witness for the defendant in response to a subpoena duces tecum with the Manpower records of the plaintiff. Mr. Martin stated that he was deputy director of the center and custodian of trainee records. During the time when plaintiff attended the center, however, Mr. Martin was not employed by the center, did not personally make any of the record entries, and did not supervise the making of any entries.

In response to questions asked by defense counsel Mr. Martin was allowed to testify that plaintiff had begun her training program on September 29, 1969 (9 days after the auto collision involved herein) and had terminated on January 29, 1970. He further testified that during that time period plaintiff had 41 absences for which various medical reasons had been given none of which were related to the injury plaintiff allegedly received in the auto accident. He stated that there were letters or reports from a Dr. McCann and a Dr. Barrow in the Manpower Center file kept on plaintiff, which set forth medical excuses for some of plaintiff's absences.

Defense counsel asserted that the responses of Mr. Martin were elicited for the purpose of impeaching plaintiff in that she had testified that she had commenced the Manpower training program prior to her accident and that she had not been treated by any doctors other than Dr. Wilson H. West and Dr. Dominic Verda between the time of the accident and March 1971.

It is apparent from the record that none of this testimony of Mr. Martin was made from firsthand knowledge. His responses were made by means of his constantly referring to matters contained in the file which he had brought. None of the items contained in the file, however, were entered into evidence.

Plaintiff contends that all of Mr. Martin's testimony was hearsay and should have been excluded and that the jury should have been instructed to disregard it. Defendant, on the other hand asserts that plaintiff has waived the right to raise this issue on appeal, by failing to make timely and specific objections to the testimony and by failing to specify the error, if any, in her post-trial motion. Defendant further asserts that even if plaintiff has not waived the right to raise such issue on appeal, nevertheless, this court should hold that the testimony was properly admitted under the business records exception to the hearsay rule, Supreme Court Rule 236 (Ill. Rev. Stat., ch. 110A, § 236).

Initially, we must agree with plaintiff that the testimony of Mr. Martin was hearsay. "Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." (McCormick, Handbook of the Law of Evidence § 246, at 584 (Cleary 2d ed. 1972).) Mr. Martin's testimony consisted of a summary of out-of-court written statements about plaintiff's attendance, absences, and health. It was given to prove the truth of the matters asserted in the statements. The most obvious indication of the hearsay character of this testimony occurred when defense counsel asked Mr. Martin whether any of plaintiff's absences from the school were by reason of medical treatment by doctors other than Dr. West or Dr. Verda. To this question Mr. Martin responded, "Well, I'll have to go through and check to see the doctor's statements, whose signature on it."

Mr. Martin testified, not from firsthand knowledge, but only by constant reference to the notes and recordings in the file which he had brought with him pursuant to the subpoena duces tecum. The materials in the file were not, however, used to refresh the memory of Mr. Martin, because he had no memory of what was contained therein. The use of the materials cannot, therefore, be justified under the rule allowing for refreshing the memory of a witness.

• 1 Similarly, Mr. Martin's reference to the records cannot be deemed within the rule of past recollection recorded. Before that rule can be invoked four elements must be met: (1) the witness must have had firsthand knowledge of the event recorded; (2) the written statement must be an original statement made at or near the time of the event and while the witness had a clear and accurate memory of the event; (3) the witness must lack any present recollection of the event; and (4) the witness must vouch for the accuracy of the memorandum. (McCormick, Handbook of the Law of Evidence § 299, at 712 (Cleary 2d ed. 1972).) The first two elements of the rule are clearly absent here.

• 2 Nor was Mr. Martin's testimony proper under the business records rule, Supreme Court Rule 236. That Rule provides in part:

"(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." (Ill. Rev. Stat., ch. 110A, § 236.)

The language of the first sentence of this Rule makes it apparent that it is the business record itself, and not the testimony of a witness who makes ...


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