{ "id": 3556938, "name": "LYMAN MELVIN TWADDLE, Plaintiff-Appellant, v. DIANE LITCHFIELD, a/k/a Diane Sayers, Defendant-Appellee", "name_abbreviation": "Twaddle v. Litchfield", "decision_date": "1983-05-17", "docket_number": "No. 81\u2014683", "first_page": "191", "last_page": "198", "citations": [ { "type": "official", "cite": "115 Ill. App. 3d 191" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "75 N.E. 375", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "217 Ill. 516", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3356002 ], "opinion_index": 0, "case_paths": [ "/ill/217/0516-01" ] }, { "cite": "367 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 194", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390170 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0194-01" ] }, { "cite": "371 N.E.2d 692", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3414752 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0873-01" ] }, { "cite": "232 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "90 Ill. App. 2d 438", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2898232 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0438-01" ] }, { "cite": "190 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "41 Ill. App. 2d 208", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2451954 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0208-01" ] }, { "cite": "227 N.E.2d 758", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "37 Ill. 2d 596", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864972 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0596-01" ] }, { "cite": "221 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "35 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380279 ], "opinion_index": 1, "case_paths": [ "/ill-2d/35/0351-01" ] } ], "analysis": { "cardinality": 804, "char_count": 17223, "ocr_confidence": 0.737, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.2829520176658948 }, "sha256": "885c2adfb2ef8f947d16401af8a12e131c3b1f57f947e288a24bf8e6484033b4", "simhash": "1:2222f0e4ba058df5", "word_count": 2733 }, "last_updated": "2023-07-14T19:16:24.783716+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LYMAN MELVIN TWADDLE, Plaintiff-Appellant, v. DIANE LITCHFIELD, a/k/a Diane Sayers, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SCOTT\ndelivered the opinion of the court:\nThis action arises out of an automobile-motorcycle collision which occurred in rural McDonough County. Following a jury trial in the circuit court of that county, a verdict was returned for the defendant. This appeal has been prosecuted by the plaintiff, who seeks a new trial.\nOn April 9, 1977, the plaintiff, Lyman Melvin Twaddle, was driving his motorcycle south on Candy Lane Road. Riding with him was a passenger, Melodie McGrew. Candy Lane was a two-lane, blacktopped road south of Macomb, Illinois, which proceeded generally in a north and south direction. It was straight, with a dip to the north of and near the place of the collision in question.\nThree miles south of Macomb\u2019s Grant Street, Candy Lane forms a \u201cT\u201d intersection with a road that runs to the west, but not to the east. As the plaintiff approached this intersection on his motorcycle, he was followed by an automobile driven by the defendant, Diane Litchfield (Sayers). Arriving at the \u201cT\u201d intersection, the plaintiff made a right turn toward the west, made a \u201cU\u201d turn on the intersecting road, made a rolling stop, and then re-entered Candy Lane Road going north. As the plaintiff\u2019s motorcycle re-entered Candy Lane Road, it crossed the path of defendant\u2019s oncoming automobile. The defendant, fearing a collision, applied the automobile\u2019s brakes. The application of its brakes caused the automobile to skid into the northbound lane of Candy Lane where a collision occurred between the automobile and the plaintiff\u2019s motorcycle.\nAs previously recounted, a suit was filed, and in the trial which followed the plaintiff advanced the position that he was traveling in his lawful lane of traffic, and that defendant\u2019s actions which caused her automobile to skid into the northbound lane of traffic were negligent. In contrast, the defendant advanced the position that her reaction in applying the brakes was a reasonable response to an emergency situation created by the plaintiff\u2019s failure to yield, and therefore the resultant skid into the northbound lane was legally excusable.\nOn appeal, the plaintiff urges that the verdict of the McDonough County jury was against the manifest weight of the evidence. Although the statement of facts previously set forth is somewhat abbreviated, we have nevertheless thoroughly reviewed the record of proceedings below and we cannot agree with the plaintiff that the position advanced by defendant is not supported by credible evidence. Indeed, the evidence presents a close case, and the jury verdict reflects a careful consideration of the contrasting positions of the litigants. None of the cases cited by the plaintiff, Calvetti v. Seipp (1967), 37 Ill. 2d 596, 227 N.E.2d 758, Martin v. Miles (1963), 41 Ill. App. 2d 208, 190 N.E.2d 473, Nikkinen v. Evans (1967), 90 Ill. App. 2d 438, 232 N.E.2d 774, and Graves v. Wornson (1978), 56 Ill. App. 3d 873, 371 N.E.2d 692, involve the question of one\u2019s conduct when confronted with an emergency where the standard of care imposed by law may be less stringent than in other circumstances. (Borus v. Yellow Cab Co. (1977), 52 Ill. App. 3d 194, 367 N.E.2d 277.) Thus, the rule announced in those cases must be distinguished from the instant case.\nAnother alleged error urged upon us by the plaintiff involves the defendant\u2019s failure to comply with the pretrial discovery requests made upon her. In defendant\u2019s answers to plaintiff\u2019s interrogatories she stated that she had 10 photographs taken by her insurance carrier, eight of the collision site, one of the motorcycle and one of the automobile. Defendant was requested to produce these photographs in her possession. Prior to trial, the defendant produced xerox copies of seven photographs. At the time of trial, the defendant produced seven original photographs taken by her insurance carrier and three slide transparencies taken by her attorney.\nAs a further part of pretrial discovery, plaintiff requested that the defendant produce all discoverable notes or memoranda relating to the collision. That request was purportedly complied with on March 8, 1979. When the seven original photographs were produced at trial, it was revealed that written on the backs of the photographs were notations concerning the collision scene, the length of the defendant\u2019s skid marks, and the exact point of impact. None of these notations were produced on March 8, 1979. The plaintiff\u2019s counsel, unprepared for this revelation of newly discovered matter at the commencement of trial, demanded that the defendant stipulate into evidence the substance of the notation concerning the length of defendant\u2019s skid marks, or in the alternative, that the court order a continuance to permit the plaintiff an opportunity to subpoena the notation\u2019s author. The trial court indicated that it was not adverse to continuing the matter pursuant to plaintiff\u2019s demand, and following a recess in the proceedings, the litigants returned to court and entered into the stipulation demanded.\nThe photographs again became an issue in post-trial proceedings before the court. At that time, the plaintiff directed the court\u2019s attention to answers given by the defendant in response to the plaintiff\u2019s interrogatories. Since only seven photographs were produced\u2014 the remaining three being slide transparencies \u2014 and since only seven photographs were taken by the insurance carrier \u2014 the slides having been taken by defendant\u2019s attorney \u2014 it was the plaintiff\u2019s contention that the interrogatory was incorrect or that disclosure was incomplete. In order to verify that the unaccounted for photographs taken by the insurance company had not been wrongfully withheld in the pretrial discovery process, the plaintiff subpoenaed the insurance carrier\u2019s investigative file as well as it claims supervisor and its claims adjuster.\nThe defendant objected to this procedure which she characterized as unauthorized post-trial discovery, and dismissed the apparent inaccuracy of the interrogatory response as mere inadvertence. Despite objection, the trial court permitted plaintiff\u2019s counsel to question both the claims supervisor and the claims adjuster. The court did not permit plaintiff\u2019s counsel to examine the insurance carrier\u2019s file; however, the court did impound the insurance carrier\u2019s file as maintained by its claims adjuster, and the file of defendant\u2019s attorney, for the purpose of inspecting both files in camera. Further, the court ordered those parts of the insurance carrier\u2019s \u201coriginal investigative file\u201d having \u201canything to do with [the] photographs\u201d to be certified to and produced by an officer of the carrier. Following the trial court\u2019s in camera inspection of the impounded files, it denied the plaintiff\u2019s post-trial motion which sought a finding that defendant had failed to make a good faith pretrial discovery response.\nPlaintiff now urges that a new trial should be granted because he was denied a continuance upon the revelation of the undisclosed notations and because he was denied the opportunity after trial to examine the insurance carrier\u2019s investigative file. With regard to the matter of the continuance, we cannot agree that the trial court denied the plaintiff\u2019s request, let alone that it erred in doing so. As previously recited, plaintiff\u2019s demand was made in the alternative as follows:\n\u201cI would call upon Counsel [for the defendant] at this time to stipulate that if, in view of these circumstances and in view of having been taken by surprise since we have been here in this matter, call upon him to stipulate that *** if the person who took these photographs was here, he would testify that the skid marks that he found on this photo or exhibit measured 105 feet. In the alternative, I would ask for a continuance of this trial ***.\u201d\nThe trial court responded that it \u201cwouldn\u2019t be adverse to continuing this.\u201d A recess was taken and following a recess the stipulation demanded was agreed to on the record. We do not believe justice would be served if the plaintiff here were granted a new trial for the reason that the very stipulation he demanded, albeit in the alternative, was agreed to by the defendant. Moreover, the refusal of a continuance is not prejudicial where the anticipated testimony of an absent witness is admitted. Kellyville Coal Co. v. Strine (1905), 217 Ill. 516, 75 N.E. 375.\nLikewise, we do not believe the plaintiff is entitled to a new trial because he was denied the opportunity to examine the insurance carrier\u2019s investigative file. Without considering the defendant\u2019s contention that there is no statutory authority for post-trial discovery, we would observe that all discovery is limited by certain basic restraints. For example, the information sought to be discovered must be relevant (73 Ill. 2d R. 201(b)(1)), it must not be privileged (73 Ill. 2d R. 201(b)(2)), and it must not include strategies prepared for trial (73 Ill. 2d R. 201(b)(2)). Under the facts of the instant case, the only issue raised by the post-trial motion involved defendant\u2019s good faith in producing all the photographs in her possession. Thus, the only material which could have been relevant under the general rules which govern all discovery was material relating to the photographs and the number taken. Yet, under these circumstances, the relevant information in the files sought to be examined was intermingled with nondiscoverable privileged matters and work product. Faced with this dilemma, the trial court impounded the subpoenaed files, reviewed them, and made available to the plaintiff those parts of the file relevant to plaintiff\u2019s post-trial inquiry. This method of proceeding afforded plaintiff the opportunity he sought to verify that discovery had been conducted in good faith, while protecting the confidentiality of defendant\u2019s privileged matters and work product. The trial court\u2019s authority to so supervise the discovery process is clearly granted by the Supreme Court Rules (73 Ill. 2d R. 201(c)), and we believe the trial court\u2019s exercise of its supervisory authority under these circumstances adequately protected the rights of both litigants.\nTo additionally insure that no bad faith occurred in the pretrial discovery phase of this action, we have meticulously examined the impounded files, and we find nothing to indicate that the insurance carrier ever exposed or possessed more than seven photographs. The statement by the defendant that the insurance carrier took 10 photographs \u2014 when in fact the defendant\u2019s attorney took three of the 10 appears to be a careless, inexact response to the interrogatory propounded; however, it does not appear that three photographs were secreted or withheld. We find no attempt by the defendant to subvert the discovery process by intentionally withholding information or photographs which should have been produced in discovery, nor do we conclude that the defendant\u2019s inexact response engendered such confusion as to require the granting of plaintiff\u2019s post-trial motion for imposition of sanctions.\nFor the reasons set forth the judgment of the circuit court of McDonough County is affirmed.\nAffirmed.\nSTOUDER, J., concurs.", "type": "majority", "author": "JUSTICE SCOTT" }, { "text": "PRESIDING JUSTICE BARRY,\nspecially concurring:\nThis was a contributory negligence case. The ultimate question before us is whether the defendant\u2019s fractional discovery prejudiced this plaintiff. In the final analysis I think not. However, as is indicated by the majority, \u201cindeed, the evidence presents a close case, ***.\u201d The critical fact is whether the motorcycle was headed north in its proper lane. No photograph of the damaged area of the motorcycle was produced by the company. Only a photograph of the undamaged rear of the motorcycle was produced.\nThis close case deserves more careful scrutiny for a special reason \u2014 here we have a common insurer, insuring both the plaintiff and the defendant. We know from Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410, that absolute good faith and a stricter standard of disclosure is necessary in such cases. With these principles in mind, and considering that the objective of discovery is disclosure, I have painstakingly reviewed the record. The question thus is whether this insured did in fact comply with the standard of disclosure applicable to this case. There is evidence of noncompliance. In his post-trial motion the plaintiff requests appropriate sanctions for failure to make good faith discovery. Consideration must be given to whether the noncompliance was so substantial as to have been prejudicial.\nAbout a month after the accident, on May 6, 1977, the insurance company determined that it also insured Mr. Twaddle. Prior thereto Mr. Twaddle cooperated with the company, giving a statement regarding the incident, and submitting bills and medical reports regarding his injuries. Ultimately, during October 1977, Mr. Twaddle engaged counsel to represent him, suit was filed several months later, and about two years thereafter interrogatories were propounded to Diane Litchfield, the defendant. In response, the defendant, with the aid of insurance company counsel, responded that 10 photographs were taken \u201cright after the accident\u201d by the insurance company.\nAs the trial commenced, in August 1980, only seven original photographs were given over to plaintiff\u2019s trial counsel by the insurance company\u2019s defense counsel in compliance with plaintiff\u2019s discovery requests and for possible introduction into evidence. Legends on the back of some of the photographs were then revealed for the first time. The trial court indicates that all parties concerned were genuinely surprised. This was the first and only evidence of the skid marks put down by the defendant\u2019s automobile, obviously a fact of more than passing importance. No skid marks were noted on the police report.\nThe foregoing, constituting at the very least less than full discovery of investigative matters when total discovery is required by the common insurance carrier, prompted post-trial proceedings by the plaintiff in an attempt to prove that the company denied him access to materials to which he was entitled in preparation for trial against another insured. He asked only for the company\u2019s investigative file as it existed prior to the date he engaged counsel in October of 1977. The opinion of the trial judge was that the discovery matters in the case were \u201chighly disputed\u201d and merited a full hearing.\nI have scrutinized the impounded files and find no reference disclosing anything more than that some photographs were taken by one of two investigating company adjusters, apparently within two days following the accident, \u201cprobably the day that [they] learned of the accident.\u201d The company transmittal photo envelope included in one of the impounded files had no blanks completed regarding the number of photographs taken, or otherwise. It bore only the legend \u201cSayers,\u201d the name of the defendant Litchfield as of her marriage on June 17, 1978 \u2014 about one year after the accident.\nNear the end of that lengthy post-trial hearing the insurance defense counsel refused to allow his and his company\u2019s entire files to be viewed in camera by the court. It appears that there were three, or possibly four, company files in all. The trial judge, Judge Charles Wilhelm, in attempting to fashion a remedy for which there are no post-trial discovery rules, settled for defense counsel\u2019s interpretation of what was his own work product and what was the content of his client\u2019s investigative files. The record does not support the majority\u2019s assertion that the trial judge ever had an opportunity to review the entirety of the files. My review of the record indicates that the trial court permitted defense counsel to extract from the files any of those parts that he, the defense counsel, chose to cull out. In my opinion, that was error. To distinguish relevant investigative information from nondiscoverable privileged matters and work product is properly the chore of the trial court.\nFinally the trial judge, in denying the post-trial motion of the plaintiff, wrongly indicates that the entire file was requested to be discovered by the plaintiff. The record supports that only the investigative file, prior to the date the matter became an adversary proceeding, in October of 1977, was requested, and that except for copies of two letters he was refused access. The response was inadequate. The motion for reconsideration was filed in response to that denial, but no transcript is found in the record on review of that hearing. The motion to reconsider was denied, but we do not have the benefit of the court\u2019s reasoning therefor.\nNonetheless, in this case, since I am convinced that the plaintiff was not prejudiced, I do not believe that the severe sanction of a new trial would be appropriate.\nI, therefore, concur in the result reached by the majority.", "type": "concurrence", "author": "PRESIDING JUSTICE BARRY," } ], "attorneys": [ "Robert G. Heckenkamp, of Heckenkamp and Simhauser, of Springfield, for appellant.", "James J. Elson, Chartered, of Canton, for appellee." ], "corrections": "", "head_matter": "LYMAN MELVIN TWADDLE, Plaintiff-Appellant, v. DIANE LITCHFIELD, a/k/a Diane Sayers, Defendant-Appellee.\nThird District\nNo. 81\u2014683\nOpinion filed May 17, 1983.\nRehearing denied July 8, 1983.\nBARRY, P.J., specially concurring.\nRobert G. Heckenkamp, of Heckenkamp and Simhauser, of Springfield, for appellant.\nJames J. Elson, Chartered, of Canton, for appellee." }, "file_name": "0191-01", "first_page_order": 213, "last_page_order": 220 }