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Laughlin v. Chenoweth





APPEAL from the Circuit Court of Douglas County; the Hon. JAMES N. SHERRICK, Judge, presiding.


This case turns upon the requirements to authenticate, as a prior inconsistent statement and an admission of a party, a writing signed by that party and purporting to be his explanation of the occurrence giving rise to the litigation. We hold that under the record made here, the trial court did not err in sustaining an objection to an offer of proof of the document.

Suit was brought in the circuit court of Douglas County by Gerald Laughlin, Sr., on behalf of his minor son, plaintiff, Gerald Laughlin, Jr., against defendant, Linda L. Chenoweth, seeking damages for personal injuries suffered by plaintiff on July 1, 1976, as a result of a collision between a motorbike upon which he was riding and an automobile driven by defendant. The count upon which the case was tried sounded in negligence. After a trial by jury, judgment was entered on a verdict for plaintiff in the sum of $35,000.

Defendant appeals claiming error in: (1) the exclusion of the written document offered by defendant signed by plaintiff, and purporting to be his explanation of the collision; (2) the refusal of a continuance requested by defendant because of the presence of plaintiff's mother on the jury venire; (3) rulings concerning (a) defendant's request for extra time to submit a special interrogatory, and (b) the granting or denying of instructions.

The collision occurred near a "T" intersection formed by an east-west country road which continued through the intersection and a north-south country road which did not extend to the south beyond the intersection. Plaintiff who was then a few days short of being 10 years old rode his minibike south to the intersection, entered the intersection, turning left and was hit by defendant's automobile at a point on the south edge of the road some 30 to 50 feet east of the intersection. Defendant was traveling in a westerly direction. Evidence was introduced that defendant's car skidded 59 feet to a point some witnesses thought to be the point of impact and then skidded an additional 18 feet, dragging plaintiff and his minibike along. Defendant testified that (1) she saw plaintiff enter the intersection when she was only 100 to 150 feet from the intersection; (2) she then applied her brakes; (3) plaintiff angled in a southeasterly direction to the south side of the road; and (4) that after she had come to a stop, plaintiff slid under her car. On the other hand, plaintiff testified that he stopped as he approached the intersection from the north, looked both ways, saw defendant's automobile as it crossed a bridge which he estimated to be about one-quarter of a mile away, entered the intersection, made a right angle left hand turn, saw defendant's car coming in the center of the road, pulled off to the side and was hit by defendant's swerving car.

In cross-examining plaintiff, defense counsel presented plaintiff with the document which is at the heart of this appeal. It was a two-page handwritten document purporting to be a statement of plaintiff describing the collision and bore the date of July 14, 1976. Plaintiff admitted that his signature appeared at the bottom of the first page, but denied having any recollection of having given the statement. Plaintiff's mother testified that an investigator came to their home at about that time. She stated that the investigator asked plaintiff how the collision happened and that plaintiff "told him" and the investigator "wrote it down." She testified that plaintiff tried to sign but had difficulty in writing so that after he signed the first page, she signed the second page with his name and hers. She was not asked as to whether she or plaintiff had read the statement.

Two sentences in the document are significant. In one plaintiff is purported to have said that he slowed as he approached the intersection as he came from the north but did not stop. In the other he was purported to have said that defendant's vehicle was 100 feet away from the intersection as he entered. Both statements if properly proved to have been made would have been impeaching prior inconsistent statements since at trial he testified that (1) he stopped before entering the intersection, and (2) she was about a quarter of a mile away at that time. The statements would also be clearly admissible against him as substantive evidence under the admission by a party opponent exception to the hearsay rule.

• 1 We consider first the question of whether the document was sufficiently authenticated to be admissible for impeachment. The general rule in this respect was set forth in the often cited case of Illinois Central R.R. Co. v. Wade (1903), 206 Ill. 523, 530, 69 N.E. 565, 567, where the supreme court stated:

"When it is desired to impeach a witness by proof of oral statements made by him out of court contradictory upon a material point of his testimony given from the witness stand, it is requisite that a foundation for the introduction of such oral statements be made by asking the witness if he did not, at a given time and place, in the presence of specified persons, make the supposed contradictory statements; but where the supposed contradictory statements were reduced to writing by the witness, or signed by him, a sufficient foundation for the introduction of the writing is laid by showing the paper to the witness, allowing him to inspect it and to read it if he desires, and proving by him, or others, that the signature thereto is his genuine signature." (Emphasis added.)

Subsequent to Wade, in Belskis v. Dering Coal Co. (1910), 246 Ill. 62, 92 N.E. 575, the supreme court indicated that the signature of a witness on an impeaching document is not always, of itself, sufficient to authenticate the document for use in impeaching that witness. There, a trial witness, who had difficulty speaking English, had testified at a coroner's inquest partly in English and partly in Lithuanian. A person present was purported to have reduced the testimony to a writing which was signed by the witness. That witness admitted at trial that the document contained his signature but said that he did not know what was written on the document when he signed it and that it appeared that the document had more wording on it at trial than it did when he signed it. The circuit court of Vermilion County excluded the document. The appellate court for the then Third Judicial District, predecessor to the court for the present Fourth Judicial District, affirmed (151 Ill. App. 85) noting that other than the testimony as to the signature, no other evidence had been presented to support the integrity of the document. The court described the witness as having "repudiated" the paper and having "denied that he had knowledge of its contents." The court then stated "in the absence of any counteracting evidence with relation to the paper and the circumstances under which it was signed the paper was properly excluded."

The supreme court reversed in Belskis for other reasons but approved the appellate court analysis of the authentication of the statement. It stated that in Wade "the witness not only admitted that he had signed the paper, but it was evident also that he admitted it was unchanged and that he understood the contents at the time he wrote his signature" (emphasis added) 246 Ill. 62, 68-69, 92 N.E. 575, 578). The supreme court then reiterated the language from the appellate opinion describing how, in the case before it, the witness had "repudiated the paper in the form in which it was presented to him and denied that he had knowledge of its contents." 246 Ill. 62, 69, 92 N.E. 575, 578.

In Hapke v. Brandon (1951), 343 Ill. App. 524, 99 N.E.2d 636, Wade was cited with approval and the trial court was reversed for refusing to admit impeaching statements which the witness had admitted signing. The witness had denied saying the things attributed to him in the statements. No evidence was presented as to whether he had read the documents before signing them. In Babington v. Bogdanovic (1972), 7 Ill. App.3d 593, 288 N.E.2d 40, although reversing on other grounds, the court approved a trial court's admission of an impeaching written statement which the witness admitted signing but claimed had been altered after her signature.

In Plotkin v. Winkler (1944), 323 Ill. App. 181, 55 N.E.2d 545, a trial court was held to have erred in excluding a written impeaching statement shown to be signed by the witness. The evidence showed the witness to be illiterate. He testified that the statement had been read to him before he signed it but that he had explained the facts to the person taking the statement as he testified to them at trial and not as they were contained in the statement. The opinion did not make clear whether the witness had testified as to whether the statement presented at trial was consistent with that read to him. Wade was cited with approval. In Horton v. Mozin (1950), 341 Ill. App. 66, 92 N.E.2d 671 (abstract), the same district of the appellate court which had written Plotkin discredited it, saying that it overlooked Belskis. The Horton court held the trial court to have committed reversible error in admitting for impeachment a written statement signed by a 12-year-old and purportedly taken from the child when no adults accompanied her. The evidence indicated that the child did not read the statement and that it was read to her. The child testified that she did not do so because she was told that the person taking the statement was from the office of her attorney. Although relying partly upon the evidence of fraud, the court relied principally upon the lack of proof of authenticity of the signed statement and said that the investigator who took the statement or someone else who knew of its contents at the time of the signing should have been produced.

Here, the showing of authenticity was weaker than in Wade because there was no showing that the plaintiff "understood the contents at the time he wrote his signature." Similarly it is weaker than in Babington because there the witness at least tacitly admitted that she had read the document over before signing. The trier of fact could then decide whether the document had been altered. The case differs from Hopke only in that the witness here was a bedridden 10-year-old who was unable to sign the second page of the document. As in Hopke no evidence was presented as to whether the witness had read the document before signing, but unlike in Hopke, the physical condition of the witness would indicate that he had not. The ...

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