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Heitz v. Hogan

OPINION FILED JUNE 27, 1985.

NOLA HEITZ, ADM'R OF THE ESTATE OF RICHARD HEITZ, DECEASED, PLAINTIFF-APPELLANT,

v.

ARLIE HOGAN ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Piatt County; the Hon. John P. Shonkwiler, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

This is an appeal from a verdict and judgment in favor of all the defendants, Aimee Sawlaw, Michael Hogan, Sandra Hogan and Arlie Hogan, and against the plaintiff, Nola Heitz, administrator of the estate of Richard Heitz, deceased. The plaintiff raises several issues on appeal: (1) The statutory provision which provided for the admission of the medical report to the coroner is unconstitutional and that report should not have been admitted; (2) Dr. Bobowski's report to the coroner was inadmissible as "reconstruction testimony"; (3) the trial court erred in limiting the plaintiff's examination of Dr. Bobowski by refusing to permit leading questions; (4) the trial court erred in failing to instruct the jury with a definition of proximate cause; (5) the trial court erred in refusing to instruct the jury with respect to defendants' alleged violation of section 11-1416 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 11-1416); and (6) the trial court erred in failing to instruct the jury on defendants' failure to produce a witness.

Nola Heitz, administrator of the estate of Richard Heitz, commenced a wrongful death action against Aimee Sawlaw, Michael Hogan, Sandra Hogan and Arlie Hogan. The complaint alleged that on November 10, 1981, Michael and Aimee were each operating trucks on Piatt County Highway No. 2. The two trucks were stopped adjacent to each other, with Michael in the southbound lane and Aimee in the northbound. It was further alleged that decedent, Richard Heitz, was driving in the southbound lane of Piatt County Highway No. 2 and was killed when his automobile ran into the rear of the truck operated by Michael Hogan. Michael and Aimee were employed by the partnership of Sandra and Arlie Hogan.

At the trial, Aimee testified that on November 10, 1981, she was driving a truck in the northbound lane of the Mansfield blacktop. She saw headlights approaching in the southbound lane and, through the use of her CB radio, identified the driver of the vehicle as Michael Hogan. The two stopped their trucks on the road to talk, then she continued on her way. Aimee then saw another set of headlights in the southbound lane moving toward her. She later learned that the headlights were those of an automobile driven by the decedent.

Aimee testified that when the decedent's auto passed her truck, the auto was traveling 45 to 50 miles per hour. She knew at that time that Michael's truck was either stopped in the southbound lane or, if it was moving, it was moving slowly. Aimee further testified that Michael's truck was 100 feet south of her truck when the decedent drove by her. Aimee heard the collision between the decedent's car and Michael's truck. She testified that she stopped her truck, got out, and went to a house down the road to report the accident to the Piatt County sheriff's office.

Michael Hogan testified that he had stopped his truck only a few seconds to talk with Aimee on the Mansfield blacktop. He testified that he had stopped "[t]o see if Mitchell could take the truck to the elevator and I could get back to combining." (Mitchell was apparently a passenger in Aimee's truck.) After stopping, Michael started the truck again because "Aimee and Mitch saw the car coming, so they told me and we took off."

Michael acknowledged statements he had made in an interview three days after the accident wherein he stated that it was completely dark when the accident occurred and that he was in first gear and traveling at 15 miles per hour when he was hit by the decedent's auto. He had also stated in the interview that he had stopped to talk with Aimee for two or three minutes.

State Trooper Benny O'Neill testified that he received a radio call at 5:42 p.m. on November 10, 1981, relating to the collision. He arrived at the scene at 5:55 p.m., where he saw two grain trucks and one 1976 Buick. The front end of the Buick was under the rear end of the truck in the southbound lane. O'Neill testified that Aimee Sawlaw told him she and Michael Hogan had stopped their trucks in the roadway and had been talking. O'Neill also testified that the decedent was in the driver's seat of the automobile when he arrived. However, the decedent's son, who had also arrived at the scene, removed decedent from the automobile.

Stan Heitz, the decedent's son, lived on a farm south of Mansfield. He testified that decedent had been at the farm on the day of the accident and left at about 5:30 p.m. to return to his home near Mansfield. Stan was still in the field when a neighbor informed him his father had been in an accident. Stan and his wife, Sharon, drove to the scene of the accident. Upon arriving, Stan removed decedent from the car and Sharon and Officer O'Neill administered CPR. Stan testified that decedent had a sizeable bruise on his forehead, a cut under his nose, and cuts on the knuckles of both hands. Stan also testified that he saw Aimee Sawlaw's father, Sheriff Forrest Sawlaw, at the scene with Aimee. Stan heard Aimee say to her father, "I yelled at Mike to get out of the way, and he couldn't start."

Sharon Heitz testified that decedent was unconscious when she arrived at the scene of the accident. Sharon felt decedent's wrist and neck for a pulse but found none.

Defendants' only witness was Arlie Hogan. He testified that he had been a farmer for 12 years, that his wife's name was Sandra, and that he had three children: Michael Hogan, Matthew Hogan, and Laura Bloom.

The trial court allowed defendants to introduce into evidence the medical report of the coroner's physician. The report stated that the immediate cause of death was a cardiac arrest. The report concluded: "From the autopsy finding, it is felt that this patient had his accident due to his heart attack and no type of therapy could have changed the outcome."

In rebuttal, plaintiff called Dr. Stan Bobowski, the pathologist who prepared the medical report to the coroner. Bobowski testified that, at the time he performed the autopsy, he assumed that the speed of decedent's vehicle was 10 to 20 miles per hour. He had also stated in a deposition that the speed at impact was 10 miles per hour. This assumption was based on the physical injuries he observed to the decedent. Bobowski testified hypothetically that, in his experience, a 50 miles per hour collision without seat belts resulted in massive head and chest injuries, often resulted in the fracture of both knees, and occasionally resulted in the fracture of the neck. Decedent had no skull fractures and none of his facial bones were fractured.

After viewing photographs of decedent's automobile taken after the collision and being informed that decedent was traveling between 45 and 50 miles per hour immediately prior to the collision, Bobowski stated that the cardiac arrest could have been caused by the collision. He indicated, however, that it was just as probable that the heart attack occurred before the collision.

The jury returned a verdict in favor of all defendants and against plaintiff. Judgment was entered on the verdict and plaintiff appeals.

• 1 Plaintiff first argues that the statutory provision which provided for the admission of the medical report to the coroner is unconstitutional and that the report should not have been admitted. The trial court admitted Bobowski's report to the coroner into evidence pursuant to section 115-5.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 115-5.1), which provides:

"In any civil or criminal action the records of the coroner's medical or laboratory examiner summarizing and detailing the performance of his or her official duties in performing medical examinations upon deceased persons or autopsies, or both, and kept in the ordinary course of business of the coroner's office, duly certified by the county coroner or chief supervisory coroner's pathologist or medical examiner, shall be received as competent evidence in any court of this State, to the extent permitted by this Section. These reports, specifically including but not limited to the pathologist's protocol, autopsy reports and toxicological reports, shall be public documents and thereby may be admissible as prima facie evidence of the facts, findings, opinions, diagnoses and conditions stated therein."

Plaintiff argues that this section violates the separation of powers clause of the Illinois ...


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