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Clay v. Mccarthy





APPEAL from the Circuit Court of Knox County; the Hon. LEWIS D. MURPHY, Judge, presiding.


Rehearing denied August 2, 1979.

On June 6, 1978, a six-person jury in the Knox County Circuit Court heard evidence at a trial from which this appeal ensued. That jury subsequently returned a verdict awarding the defendant herein damages of $829.59, but denying plaintiff any recovery whatever. The evidence heard by the jury as relevant to issues raised before this court is as follows: In the early morning hours of December 15, 1976, on North Academy Street in Galesburg, Illinois, a northbound AMC Pacer driven by the plaintiff, Theresa C. Clay, collided with a southbound Ford LTD. The driving lanes were narrowed that morning by parallel parked cars on either side of the street, and the street surface was moist and slippery. No one witnessed the accident except the drivers of the two vehicles, and their testimony was conflicting as to the facts surrounding the collision. However, two persons, the investigating police officer and another individual, unnamed in the record, surveyed the position of the vehicles after the collision. It is the unheard testimony of this unnamed individual that is the center of the controversy on this appeal.

To recover for damages incurred in the collision, plaintiff filed a complaint against the defendant, alleging the latter's negligence for failure to drive his vehicle in the right lane and for excessive speed. Defendant counterclaimed, charging the plaintiff with similar acts of negligence. Thus, to the extent that the post-collision position of the vehicles was indicative of the path of travel of those vehicles, such position was crucial to the issue of negligence in both the complaint and the counterclaim.

After the pleadings were filed, interrogatories were exchanged and answered. The following is an excerpt from paragraph 13 of plaintiff's answer to defendant's interrogatories:

"13. List the names and addresses of all other persons (other than yourself and persons heretofore listed or specifically excluded) who have knowledge of the facts of said occurrence or of the injuries and damages following therefrom.

Answer: Other than the persons heretofore listed, and/or agents or employees of the persons heretofore listed, I have no present knowledge of anyone having knowledge of the facts of the occurrence or the damages to the Pacer. Members in my family do have knowledge of the personal injuries I sustained as a result of the accident."

The unheard, unnamed individual was not among the "persons heretofore listed."

At the jury trial of this cause, both parties recited their recollections of events prior to, at the time of, and immediately after the collision. Both testified as to the location of the vehicles immediately after impact, and the testimony of the defendant on that matter was closely paralleled by the testimony of the investigating police officer. However, with regard to this crucial aspect of the case (i.e., the post-collision position of the vehicles), one witness was not heard. Before the close of plaintiff's case in chief, she called an unnamed witness. The trial court refused to permit the plaintiff to direct questions to the witness. Although the court's ratio decedendi is omitted from the record, it is apparent from the contemporaneous remarks of counsel that the trial judge was excluding the testimony of the unnamed individual as a sanction for plaintiff's failure to comply with discovery rules by listing said individual in the interrogatory previously set forth. Such a sanction is not unprecedented. Wright v. Royse (1963), 43 Ill. App.2d 267, 193 N.E.2d 340; Buckler v. Sinclair Refining Co. (1966), 68 Ill. App.2d 283, 216 N.E.2d 14; Smith v. Realcoa Construction Co. (1973), 13 Ill. App.3d 254, 300 N.E.2d 855.

The plaintiff's counsel responded as follows:

"Let the record show that the plaintiff has called a witness to the stand to testify as to the position of the vehicles immediately after the accident that is the subject matter of this law suit; that this witness's existence and her knowledge as to the facts that she would testify to came within the knowledge of the plaintiff the day of the trial. Plaintiff represents that since the only fact that this witness would be testifying to would be the position of the vehicles that there is no element of surprise and that her testimony would be supportive of that of the plaintiff. Plaintiff further represents that any element of surprise could be eliminated by the Court allowing counsel a short time to briefly discuss the facts which this witness is being called here to testify to. Finally, this motion to add a witness is made before the close of the plaintiff's case and before the plaintiff has rested."

There is no statement by the court, by opposing counsel or by any other witness to dispute the remarks of counsel.

Although the statement of counsel is not a formal offer of proof which a reviewing court prefers (Miller v. Chicago Transit Authority (1966), 78 Ill. App.2d 375, 223 N.E.2d 323), there is authority for accepting the less formal statement of counsel as a valid offer of proof sufficient to preserve the issue of excluded testimony for review. (Hession v. Liberty Asphalt Products, Inc. (1968), 93 Ill. App.2d 65, 235 N.E.2d 17.) There is not one word in the record to discredit the unheard testimony of the unnamed witness that such witness' existence was only made known to the plaintiff on the day of trial.

• 1, 2 Unless the unnamed individual's existence was known to the plaintiff at the time she responded to the defendant's interrogatories, there was no violation of discovery rules. There is no duty to supplement answers to interrogatories unless specifically so requested. (Ill. Rev. Stat. 1977, ch. 110A, par. 213(e); Strope v. Chicago Transit Authority (1979), 71 Ill. App.3d 987.) No such request was here made, so if the answer was complete and correct when made, there is no violation of discovery rules. Where an interrogatory is answered ...

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