APPEAL from the Circuit Court of Knox County; the Hon. U.S.
COLLINS, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 6, 1981.
The original action underlying this appeal was a suit for damages for injuries the plaintiff, Anthony Brown, suffered when defendant Donald E. Johnson, driving his automobile in the course of his employment with defendant G & M Distributors, made a left turn across the path of plaintiff's oncoming motorcycle. Following a jury trial, judgment was entered on the jury's verdict in favor of the defendants and against the plaintiff. The plaintiff appealed from the order of the trial court denying his post-trial motion. This court's opinion, issued in response to the plaintiff's appeal, is contained in Brown v. Johnson (1978), 60 Ill. App.3d 76, 378 N.E.2d 757.
Among the issues raised by the plaintiff in his first appeal was whether the trial court erred in refusing to consider an affidavit by court reporter Emily Stessman concerning the post-trial statements of juror Robert Folkland. The day after the trial (July 2, 1976), plaintiff's attorney, Joseph Edler, with the permission of the court and in the presence of Ms. Stessman, asked Folkland numerous questions about the trial. Most of the questions related to Mr. Folkland's understanding and comprehension of both the instructions and the various legal issues involved in the case. During the questioning, Edler asked Folkland if John Strader, one of the defense witnesses, was credible. Briefly, Strader had testified that at the time of the accident involving the plaintiff's motorcycle and defendant's automobile, he was standing inside of Black's Radio and Television store in Galesburg. Just prior to the collision he looked out of the store's window and observed plaintiff's motorcycle traveling at a high rate of speed toward the intersection where the accident with defendant's car occurred. The following colloquy ensued between Edler and Folkland:
"Q. What was your — How did you accept the witness Strader?
Q. Did you believe what he said? Was he credible?
Q. He was the one standing in the window looking out of the window.
A. Yeah. One of the guys went to see. You know he questioned about him — whether he could see a block and a half away and one of the jurors went over there and looked out of that window.
Q. When did they do that?
A. Let's see. It was the last day of the trial. Maybe a day before. I'm not sure. Might have been the day before. But he said he could see down that far because that's only a short block.
Q. Did they believe what Mr. Strader said?
On July 7, 1976, Edler had a second conversation with Folkland, again in the presence of Ms. Stessman. The relevant portion of that conversation is as follows:
"Mr. Edler: Hi, Bob. Bob, the reason I stopped over here is to talk to you about the statement that I took from you last week where you told me that one of the jurors went over to Black's T.V. Store and looked out of the window to see if he could see what the witness, Mr. Strader, testified to, and on Sunday when I spoke with you on the telephone you told me you thought there might have been at least two of the jurors that went over and looked out of the window. Both times you told me you didn't recall who they were. Have you been able to think of their names since I last talked to you?
Mr. Folkland: No. There may have been two or three that went over there.
Q. Well, Bob, the reason that I'm here is to ask you if you would sign an Affidavit to that. Let me read it to ...