APPEAL from the Circuit Court of Cook County; the Hon. GERALD
L. SBARBORO, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
This appeal arises out of a negligence action plaintiff Tom Hawkins, brought against defendant, Willie Wiggins, in which plaintiff sought to recover damages sustained in an automobile accident which occurred on May 31, 1975. On the first day of trial, July 19, 1979, defendant moved to bar plaintiff from introducing any evidence of loss of income because plaintiff had failed to produce copies of Federal income tax returns and W-2 forms that defendant had requested in a notice of deposition filed July 22, 1975, and in a Rule 237 notice to produce at trial filed on December 11, 1978. Plaintiff's motion was allowed and defendant's motion to vacate this order was thereafter denied. At trial the court directed a verdict for plaintiff on the issue of liability, and the jury returned a verdict of $1000 plus costs for plaintiff. Plaintiff moved for a new trial on the ground that the court had improperly excluded evidence of lost income. That motion was denied, and plaintiff now appeals presenting the following issue for review: whether the trial court abused its discretion in barring all evidence of loss of income. For the reasons hereinafter set forth we affirm the order of the circuit court of Cook County denying plaintiff's motion for a new trial.
On May 31, 1975, plaintiff, Tom Hawkins, was involved in an automobile accident with defendant, Willie Wiggins, in the vicinity of California and Van Buren in Chicago. Plaintiff filed suit against defendant claiming damages for personal injuries, property damage and loss of income.
On or about July 22, 1975, defendant mailed to plaintiff a notice of disposition in which he asked plaintiff to produce his Federal income tax return for 1974. Plaintiff failed to bring his return to the deposition on December 11, 1975, but stated that he had the return and would make it available. On December 11, 1978, defendant sent to plaintiff a notice pursuant to Supreme Court Rule 237 (73 Ill.2d R. 237) to produce prior to voir dire plaintiff's Federal income tax returns, including the W-2 forms, for the years 1974 through 1977. Immediately before jury selection commenced on the morning of July 19, 1979, plaintiff's counsel assured the court and defense counsel that the tax records would be produced after lunch. After the parties began picking their jury, counsel informed the court that plaintiff could not locate copies of the requested returns. Defense counsel moved to bar plaintiff from introducing any testimony concerning loss of income. In argument on the motion, plaintiff's counsel advised the court that his client thought his sister had the returns but that she was unable to locate them. Counsel then stated that his client believed that his former wife might have taken the returns with her when she moved to Minnesota after their divorce. After argument, the court sustained defendant's motion to bar "any and all testimony with relation to lost time." The day after the motion was allowed, plaintiff asked for a rehearing, which was granted. At the rehearing plaintiff produced a W-2 form for 1976, the year after the accident occurred, and a check stub for the end of 1975, which purported to show plaintiff's total income for that year. Counsel represented to the court that plaintiff never kept copies of his Federal tax returns, only his W-2 forms. Plaintiff's counsel informed the court that he never advised defense counsel that he did not have the returns and added that he felt no responsibility to do so. The court denied plaintiff's motion to vacate the previous order, and counsel made an offer of proof that plaintiff's loss of income attributable to the accident was $956.80. An offer of proof from an agent of plaintiff's former employer on the same issue was denied.
At trial the court directed a verdict for plaintiff on the question of liability, and the jury awarded plaintiff $1000 in damages. Plaintiff's motion for a new trial or in the alternative for an additur in the amount of $956.80 was denied.
Plaintiff maintains that the trial court abused its discretion when, as a sanction for plaintiff's noncompliance with defendant's Rule 237 notice to produce his federal income tax returns, it prohibited plaintiff from introducing any evidence of lost income.
Rule 237(b) of the Illinois Supreme Court Rules (73 Ill.2d R. 237(b)) provides:
"The appearance at the trial of a party or a person who at the time of the trial is an officer, director or employee of a party may be required by serving the party with a notice designating the person who is required to appear. The notice also may require the production at the trial of documents or tangible things. If the party or person is a non-resident of the county, the court may order any terms and conditions in connection with his appearance at the trial that are just, including payment of his reasonable expenses. Upon a failure to comply with the notice the court may enter any order that is just, including any order provided for in Rule 219 (c) that may be appropriate." *fn1 (Emphasis added.)
Sanctions are to be imposed only when noncompliance with discovery rules or orders is found to be unreasonable and the order entered is just. (Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App.3d 1031, 1035, 402 N.E.2d 352.) In determining whether the noncompliance is unreasonable, the standard is whether the offending party's conduct is characterized by a deliberate and pronounced disregard for the rules and the court. (Sanchez v. Phillips (1977), 46 Ill. App.3d 430, 434, 361 N.E.2d 36.) A just order is one which, to the degree possible, insures both discovery and a trial on the merits. (Cedric, at 1035.) The particular sanction imposed, however, rests largely within the trial court's discretion, the exercise of which will not be disturbed on appeal absent an abuse of discretion, and the burden is on the offending party to establish by affidavit or otherwise that his failure to comply was justified by extenuating circumstances or events. Cedric, at 1035; Quarles v. Nationwide Insurance Co. (1978), 66 Ill. App.3d 455, 465, 383 N.E.2d 1234; Bender v. Pfotenhauer (1974), 21 Ill. App.3d 127, 130, 315 N.E.2d 137.
• 1 Plaintiff initially contends that no sanction was appropriate where he produced all records which were in his possession and control. Citing City Savings Association v. Mensik (1970), 124 Ill. App.2d 34, 260 N.E.2d 110, plaintiff asserts that when faced with a discovery request, a party's obligation is to exercise good faith to deliver what is in his possession and control, but that there is no obligation to affirmatively acquire the requested documents. In City Savings Association, at page 42, the court noted the "rule of universal application that a party who does not have possession and control of documents cannot be ordered to produce them for discovery." Possession, however, may be constructive as well as physical. (Schwimmer v. United States (8th Cir. 1956), 232 F.2d 855, 860, cert. denied (1956), 352 U.S. 833, 1 L.Ed.2d 52, 77 S.Ct. 48.) And in Franzen v. Dunbar Builders Corp. (1971), 132 Ill. App.2d 701, 270 N.E.2d 118, we held that sanctions for violating a Rule 237 notice may be imposed against a party where the document or thing requested was in his possession or was within his power to produce. Since the plaintiff has a statutory right to inspect and reproduce copies of his tax records (26 U.S.C. §§ 6103 (e)(1)(A)(i), 6103(p)(2)(A) (1976)), it was no defense to the notice that the records were not in his actual physical control. See Reeves v. Pennsylvania R. Co. (D. Del. 1948), 80 F. Supp. 107, 109; Paramount Film Distributing Corp. v. RAM (E.D.S.C. 1950), 91 F. Supp. 778, 781; Tollefsen v. Phillips (D. Mass. 1954), 16 F.R.D. 348.
In determining the propriety of a sanction, factors which may be considered include the surprise to the opposing party, the prejudicial effect of the testimony, the diligence of the opposing party in seeking discovery, timely objection to the testimony and the good faith of the party offering the testimony. (Carlson v. General Motors Corp. (1972), 9 Ill. App.3d 606, 619-20, 289 N.E.2d 439.) No one factor is determinative. (Carlson, at 620.) Plaintiff concedes that once defendant became aware of plaintiff's failure to produce his tax returns he made a ...