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Lam v. Northern Illinois Gas Co.





Appeal from the Circuit Court of Cook County; the Hon. Warren Wolfson, Judge, presiding.


Plaintiff, Kwai Paul Lam, brought a negligence action against defendant, Northern Illinois Gas Company (NI-Gas), to recover damages for personal injuries he suffered in a gas explosion. In a jury trial, a verdict was returned in favor of defendant. Plaintiff moved for judgment notwithstanding the verdict or, in the alternative, for a new trial on the grounds that certain evidence improperly had been admitted because it was hearsay and violated the best evidence rule. The trial court denied the motion for judgment n.o.v. but granted plaintiff's motion for a new trial. We allowed defendant's petition for leave to appeal pursuant to Supreme Court Rule 306 (87 Ill.2d R. 306).

On July 7, 1974, plaintiff was severely burned in a gas explosion at his mother's apartment in Skokie, Illinois. In 1974, he filed the instant action against the owner of the building, alleging that its negligence in maintaining certain appliances had caused the explosion. In July of 1976, plaintiff amended his complaint to add NI-Gas as a defendant. Plaintiff thereafter again amended his complaint to include an allegation that NI-Gas had been negligent in failing to investigate several telephone calls it purportedly had received prior to the explosion reporting possible gas leaks at the apartment complex.

The first jury trial ended in a mistrial. At the second jury trial plaintiff presented the testimony of four former residents of the apartment complex who stated that at various times before the explosion occurred they telephoned the custodian of the complex or NI-Gas or both to complain of possible gas leaks.

In defense the custodian testified that in the week prior to the accident he did not receive any gas leak complaints from these four witnesses. A fifth former resident stated that less than one-half hour before the explosion he notified the custodian of a gas leak. NI-Gas also attempted to introduce into evidence photostatic copies of its customer service cards to prove that prior to the date of the accident NI-Gas had not received any telephone calls concerning gas leaks at the building where the explosion occurred or at an adjacent building.

At the time of the accident, NI-Gas had a standard procedure for responding to telephone calls reporting possible gas leaks. If this procedure had been followed, a three-digit code number ending in "9" (indicating a gas leak complaint) would have been entered into the service card for the customer reporting the leak and a serviceman would have been dispatched immediately to investigate the complaint. When NI-Gas tried to introduce copies of these cards, plaintiff objected, arguing that the best evidence rule required NI-Gas to offer the original cards or to account satisfactorily for their unavailability. The trial court agreed and ruled that if the original customer service cards were no longer available, NI-Gas had the burden of establishing that the copies were exact duplicates of the originals and that the originals had not been destroyed in bad faith.

NI-Gas represented to the court that the original cards had been destroyed, either as part of NI-Gas' normal records retention program or when the customer service system was computerized. The court, however, indicated that these explanations might well be insufficient to meet NI-Gas' burden in light of the fact that the original cards apparently had been destroyed after NI-Gas had been named as a defendant in plaintiff's lawsuit.

NI-Gas subsequently abandoned its attempts to put the copies of its customer service records before the jury. Instead, NI-Gas presented the testimony of Leonard Starasinic, NI-Gas' local customer service manager. Starasinic stated that the morning after the explosion he personally examined all of the customer service cards for the building where the accident occurred and the adjacent building. He observed that the cards contained no notations that any telephone calls had been received reporting gas leaks from tenants in either building for a period of at least six months to one year prior to the explosion. Starasinic testified that if standard procedures had been followed, such calls, if received, would have been noted on those cards. After Starasinic examined the cards, they were photocopied and the copies were sent to NI-Gas' director of claims and insurance. The original cards were returned to service and subsequently destroyed. The copies were not made in the ordinary course of business. The trial court admitted this testimony over plaintiff's hearsay and best evidence objections.

Later in the trial the court informed the parties out of the presence of the jury that Starasinic's testimony had been admitted only for the purpose of impeaching plaintiff's witnesses and not as substantive evidence that NI-Gas in fact had not been notified. The court instructed NI-Gas' attorneys that in their closing arguments they could refer to Starasinic's testimony in commenting on the credibility of the witnesses who allegedly had called NI-Gas, but that they could not refer to it as "substantive evidence of the reasonableness of the gas company's conduct or reasons for the gas company doing something or not doing something."

In closing argument, defense counsel repeatedly referred to Starasinic's testimony to challenge the credibility of those witnesses who testified that they had reported possible gas leaks to NI-Gas. Plaintiff's counsel did not object to the first three such references. After reviewing the testimony concerning the company's standard operating procedures, counsel for NI-Gas raised the point for a fourth time:

"Some of you ladies and gentlemen have called other gas companies possibly with, with a request for assistance where a pilot light possibly was out and he smelled gas and you know what happened, a serviceman came out. I say that if it is difficult to believe, stretches your imagination that this company would miss one call, what about two?

Isn't it getting a little bit more unbelievable, what are the probabilities? Probability grow[s] astronomically if you might say that they ignore three calls so I say to you, ladies and gentlemen, the records of the company which were testified to and which did not reflect any such telephone calls would establish no calls were made, that is certainly not the —

MR. FIELDING: Objection.

THE COURT: Objection sustained, counsel's argument stricken from the record, ...

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