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Cowan v. Wheeler

OPINION FILED AUGUST 31, 1979.

MARY COWAN, PLAINTIFF-APPELLEE,

v.

REV. BRUCE WHEELER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT W. TONDRYK, Judge, presiding.

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

In this appeal from a judgment entered against him in a personal injury action, defendant contends that the trial court erred in allowing to be read into evidence portions of a deposition which was not signed by the deponent and contained no statement as to why the signature was omitted, and in directing a verdict in plaintiff's favor on the questions of defendant's negligence and plaintiff's contributory negligence.

This case arose from a collision which occurred at the intersection of Rand Road (north-south) and Palatine Road (east-west) in Wheeling, Illinois, between an automobile northbound on Rand, in which plaintiff was a passenger, and defendant's southbound automobile, which was making a left turn onto Palatine at the time of impact. Initially, plaintiff and her husband, John Cowan (the driver), brought this action, but John Cowan was subsequently dismissed as a party on his motion.

The record is incomplete to the extent that it does not include a transcript of all trial court proceedings, but from what is before us, it appears that defendant, called under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), testified that he first saw the Cowan car as he (defendant) was beginning his left turn onto Palatine Road; that at this point, the Cowan vehicle was approximately 30 feet away in the middle of the three northbound lanes, traveling at a speed of approximately 30 m.p.h. but probably decelerating; that he (defendant) then applied his brakes and heard the screeching of the brakes of the Cowan car; that at impact the Cowan car was traveling at a speed of 20 to 30 m.p.h. and he (defendant) was moving at less than 5 m.p.h. During the course of this testimony, the attorney for both parties stipulated that the traffic lights were green for northbound and southbound traffic. In answer to his counsel's questioning, defendant stated that he could see at least two or three blocks to the south when he was stopped at the intersection before starting to turn left.

Plaintiff testified that the weather was bright and sunny; that she was sitting in the front seat on the passenger's side of the car driven by her husband; that prior to reaching the intersection they were in the middle northbound lane and that they had been traveling in this lane the entire time they were on Rand Road; that she was not paying attention to the traffic prior to the collision but was talking to the children in the back seat or perhaps looking out the window; and that she felt the brakes being applied immediately before the impact. On cross-examination, she stated that she paid no attention to cars in the northbound left turn lane; that she observed no car in that lane pull out in front of them; and that she did not see defendant's automobile before the impact.

Plaintiff then sought to read into evidence portions of an evidence deposition taken of John Cowan. When the envelope containing the deposition was opened, it was noticed that it was not signed by Cowan and that it did not contain an officer's statement as to why the deponent's signature was omitted as required by Illinois Supreme Court Rule 207. (Ill. Rev. Stat. 1977, ch. 110A, par. 207.) On this basis, defendant objected to the use of the deposition, but the trial judge allowed it to be read. In it, Cowan related that he was the driver of the car in which plaintiff was a passenger; that he was in the center northbound lane and had been there for three to four minutes prior to the collision; that as he approached the intersection, he saw six to seven other northbound vehicles stopped in the left turn lane; that one of these cars pulled out in front of him, causing him to apply his brakes; that this car proceeded through the intersection ahead of him; that defendant's car made a left turn into the intersection just as he (Cowan) was passing through; that he was traveling 30 to 35 m.p.h. immediately before the collision; that the center front of defendant's car hit the left front of his (Cowan's) car; and that both vehicles stopped at the point of collision. Defendant's attorney then read other portions of Cowan's deposition wherein he stated that he first noticed defendant's car about two seconds prior to the impact; that at this point, their cars were separated by approximately 10 feet and defendant was just beginning to turn into the northbound lanes; that when he first saw defendant's car, he (Cowan) still had the brake pedal depressed slightly as he had applied the brake when the car in the left lane pulled in front of him; and that he then depressed the brake pedal harder to avoid a collision with defendant.

Defendant's daughter, Marjorie Wheeler, called as a defense witness, testified that she was a passenger sitting in the back seat of defendant's car; that her mother and possibly her younger sister were also passengers; that their car entered the southbound left turn lane approximately one block before the intersection; that they stopped once in the left turn lane for three to four seconds and then began to turn and stopped again when they were approximately halfway into the left turn lane of northbound Rand Road; that at this point she could see south for two blocks, or approximately 1,500 feet, but saw only open road; and that when they continued their left turn "another car came out of the left lane [northbound] and there was a collision." On cross-examination, she testified that she could see through the windshields of the oncoming cars waiting to turn left and also that she could see around them; that she could see the center lane but saw no approaching cars; that at all times relevant, she "had a clear vision"; that she did not actually see plaintiff's car emerge from the line of northbound cars waiting in the left turn lane but was "assuming" so because she did not "see where else it could have come from"; and that plaintiff's car was traveling at a speed of approximately 30 m.p.h. just prior to the impact.

At the close of the evidence, plaintiff's motion for a directed verdict on the issue of liability was granted, and the question of damages was submitted to the jury, which awarded plaintiff $53,900. There was a denial of defendant's alternative motions for a new trial or a remittitur, and this appeal followed.

OPINION

Defendant first contends that the trial court erred in allowing portions of the evidence deposition of John Cowan to be read into evidence because it bore neither Cowan's signature nor a statement by the officer explaining the reason for its omission. This requirement is set forth in Supreme Court Rule 207, which provides in relevant part:

"(a) Submission to Deponent; Changes; Signing. If the testimony is transcribed, the deposition shall be made available to the deponent for examination unless his signature is waived by him and by the parties who are represented at the deposition. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. The deposition shall then be signed by the deponent unless he is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent, the officer's certificate shall state the reason for the omission of the signature. The deposition may then be used as fully as though signed, unless on a motion to suppress the court holds that the reasons given for a refusal to sign require rejection of the deposition in whole or in part." (Ill. Rev. Stat. 1977, ch. 110A, par. 207(a).)

The question thus presented is whether the admission into evidence of portions of Cowan's deposition, which was undeniably not in full compliance with the rule, is reversible error. Defendant contends that it is and cites Bezin v. Ginsburg (1978), 59 Ill. App.3d 429, 375 N.E.2d 468. In that case, defendants were granted summary judgment and in support of their motion had submitted an unsigned deposition which had been taken of the deponent in another case. Concerning the use of the deposition, the Bezin court stated:

"[T]he rule allowing the use of deposition testimony in support of a motion for summary judgment contemplates that the deposition relied upon is one which has properly been made a part of the court record. Supreme Court Rule 207 prescribes the procedure for signing and filing depositions. (Ill. Rev. Stat. 1975, ch. 110A, par. 207.) The deposition must either be signed by the deponent or contain a waiver of signature. It is further required that the deposition be certified, sealed and filed with the clerk of the court. When no attempt is made to comply with the above rules the deposition is clearly informal and insufficient. [Citations.]

The proposed use of the * * * deposition was clearly unauthorized. The deposition was improperly acquired — Bezin was not a party to the lawsuit in which the deposition was taken. (See Ill. Rev. Stat. 1975, ch. 110A, par. 202.) Because Bezin never became a party to that initial lawsuit, the unsigned deposition was never filed nor made a part of the court record in that case. In the instant case Bezin did not file the deposition with the court as required by rule, but merely made the deposition a part of his motion for summary judgment. We cannot accept Bezin's suggestion that a totally improper deposition can be transformed into an acceptable ...


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