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06/16/97 ALBERT P. LAUMAN v. VANDALIA BUS LINES

June 16, 1997

ALBERT P. LAUMAN, PLAINTIFF-APPELLEE,
v.
VANDALIA BUS LINES, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County. No. 90-L-1240. Honorable Jerome F. Lopinot, Judge, presiding.

The Honorable Justice Hopkins deliver the opinion of the court. Maag, J., and Welch, J., concur.

The opinion of the court was delivered by: Hopkins

The Honorable Justice HOPKINS delivered the opinion of the court:

Defendant, Vandalia Bus Lines, Inc. (Vandalia), appeals from a judgment entered by the St. Clair County circuit court on the jury verdict in favor of plaintiff, Albert P. Lauman. The case involves a September 13, 1988, collision between a school bus driven by Ethel Miles, an employee of Vandalia, and a small truck driven by Lauman. On appeal, Vandalia argues that (1) it was denied a fair trial by the improper conduct and comments of Lauman's attorney; (2) the court erred by allowing hearsay statements of two witnesses to be read to the jury; (3) discovery issues were improperly raised before the jury; (4) the jury was improperly instructed; (5) the damage award was excessive; and (6) the judgment should be reversed for an accumulation of trial errors. We affirm.

I. FACTS

Certain facts about this accident are not disputed. At the time of the accident, Miles was driving a school bus with one adult passenger, Ernestine Price, who was a special education aide. As a part of her bus route, Miles was attempting to make a left turn onto State Street in East St. Louis when Lauman's Toyota truck and the bus collided. The intersection consists of State Street, running east and west, 70th Street, which is perpendicular to the north of State Street, and the driveway of the Martin Luther King Junior High School (the school), which is perpendicular to the south of State Street. State Street has two lanes of traffic running east toward Belleville and two lanes running west into East St. Louis. Miles was attempting to turn left, or west, onto State Street, from the school's driveway, and Lauman was driving east on State Street, in the inside lane, the lane furthest from the curb. All four corners of the intersection have stop signs. The stop sign controlling Lauman's direction of traffic is set back approximately 26 feet to the west of the intersection of State Street with 70th Street and the school's driveway.

Miles testified that she stopped at the stop sign before pulling onto State Street. Lauman was injured in the accident and does not remember anything about it. Various witnesses gave varying accounts of how the accident occurred and who was at fault. Thus, it was up to the jury to sort out what most likely happened.

In addition to the evidence concerning the accident, plaintiff also presented evidence to support his theory that Vandalia's false or incomplete answers to his discovery requests amounted to admissions of guilt by conduct. Most of Vandalia's arguments are directed at this part of Lauman's case. Lauman asserts that Vandalia concealed two written statements signed by Miles: the accident report drafted the day of the accident and a statement prepared less than a month later, on October 6, 1988. Neither of these statements list Ed Robinson or Ned Smith as witnesses, although Robinson and Smith claimed in depositions that they each spoke to Miles immediately after the accident. Lauman's argument is that by concealing Miles's first two statements, Vandalia was able to mislead Lauman into believing that Robinson and Smith were legitimate eyewitnesses, when in fact, according to Lauman, their accounts, that Miles stopped at her stop sign but that Lauman ran his stop sign at a high rate of speed, are fabricated.

In plaintiff's opening statement, his attorney, Bruce N. Cook, stated, "In addition to what happened in the accident, we're going to prove fraud and concoction of evidence by the Defendant." Vandalia's attorney, John W. Leskera, objected. Again in his opening statement, Cook said that it would be apparent to the jury that Smith and Robinson lied. Again, Leskera objected. Finally, Cook stated in his opening that he expected to prove that "the accident was Vandalia Bus's fault, that in order to prevent themselves from liability, they fabricated evidence, that people have not told the truth, [and] that things which were sworn were false ***." Again, Leskera objected.

The pertinent evidence presented at trial is as follows: Jeff Schleifer took pictures of the accident scene and a statement from Miles. He was interested in witnesses, but Miles did not mention Robinson or Smith as witnesses, nor did Schleifer see Robinson or Smith at the scene. Schleifer later testified that he did not ask Miles about other witnesses.

Over Vandalia's objection, Lauman's attorney read the deposition testimony of Miles to the jury. In her deposition, Miles stated that the accident occurred at about 1:20 p.m. as she was attempting to make a left turn from the school onto State Street to go to her next scheduled stop at 1:45 p.m. In her deposition, she stated that she saw both Smith and Robinson immediately after the accident, as she was calling back to "base" to report the accident. In her deposition, Miles related the accident as follows:

"ETHEL MILES: *** I went up to 70th Street to the stop sign to get ready to go. Before I pulled out, there was a car coming on my right and a bus was coming on my left. But the bus was farther down. So this car was coming kind of quick on my right, so I stopped to make sure he was going to come to a complete stop. Okay. By the time he stopped, I looked back to my left and the bus was coming up on the stop sign. Okay. I eased on out to get ready to make my turn. Before I made my turn, that's when I spotted Mr. Lauman coming down the street, you know, pretty fast.

***

He was coming from my left and he was going pretty fast. *** So I stopped, thinking, 'Well, maybe he will go around me.' But it looked like his head was turned to the left. And by the time he turned around to look up, he was under my bus and I was scared to speed up to get out of the way, scared he would hit my gas tank in the back, so I stopped, thinking he would look up and go around me."

Miles estimated Lauman's speed at 55 to 60 miles per hour at the time of the accident.

Over Vandalia's objection, plaintiff also read the deposition testimonies of Ed Robinson and Ned Smith. Robinson testified that he had been working for Vandalia as a bus driver for about a week at the time of the accident. He testified that he was on a Bi-State bus, headed east and stopped at the stop sign at the intersection of 70th and State Streets, when he witnessed the accident. He testified that the Vandalia bus was attempting to turn left to head east to East St. Louis at the time of the accident. According to Robinson, Smith was on the same bus, and they exited the bus together to go check on the people in the accident. Smith testified that after the accident, he drove the Vandalia bus back to the garage.

Ned Smith testified in his deposition that he also saw the accident from the Bi-State bus, which he claimed was heading west on State Street at the time of the accident. He testified that the Vandalia bus was attempting to make a right turn to head east. He estimated Lauman's speed at about 35 miles per hour at the time of the accident. He testified that he did not get off the Bi-State bus after the accident. He was not working for Vandalia on the day of the accident, but he went to work for them shortly afterwards and was employed by Vandalia when he gave the deposition. Smith testified that although he knew Ed Robinson, he did not see him that day.

Reginald Woods was the assistant terminal manager for Vandalia when the accident occurred. He testified that he went to the scene and took pictures. Woods testified that Robinson could not have driven the school bus away from the scene of the accident because the bus was disabled and had to be towed away.

Dennis Streif was vice president of Vandalia at the time of the accident. He testified that he signed the discovery sent to plaintiff. He got his information from the accident reports, but he did not list Miles's statements of September 13, 1988, or October 6, 1988, even though he knew that she filled out the accident report form on September 13, 1988. He also did not list either Robinson or Smith as witnesses to the accident.

Rosie Doss testified that she was driving the Bi-State bus and observed the accident. She testified that her bus was headed west on State Street, and that she was stopped letting off passengers at the stop sign at the intersection of State and 70th Streets at the time of the accident. She testified that Lauman stopped at the stop sign on ...


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