{ "id": 2856224, "name": "Leroy Hall, Plaintiff-Appellant, v. Baum Corporation, d/b/a Washington Hotel, Defendant-Appellee", "name_abbreviation": "Hall v. Baum Corp.", "decision_date": "1973-06-07", "docket_number": "No. 55420", "first_page": "755", "last_page": "761", "citations": [ { "type": "official", "cite": "12 Ill. App. 3d 755" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "223 N.E.2d 231", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill.App.2d 337", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2568824, 2568640 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/78/0337-02", "/ill-app-2d/78/0337-01" ] }, { "cite": "250 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "112 Ill.App.2d 213", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590922 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0213-01" ] }, { "cite": "204 N.E.2d 820", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill.App.2d 220", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5284280 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0220-01" ] }, { "cite": "163 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.2d 138", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329364 ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0138-01" ] }, { "cite": "280 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill.App.3d 160", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2921258 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0160-01" ] }, { "cite": "294 N.E.2d 59", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "10 Ill.App.3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5398979 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0247-01" ] }, { "cite": "246 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill.App.2d 90", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1596893 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/107/0090-01" ] }, { "cite": "283 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 Ill.App.3d 1077", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2914631 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/1077-01" ] } ], "analysis": { "cardinality": 710, "char_count": 13685, "ocr_confidence": 0.777, "pagerank": { "raw": 1.5878525096268818e-07, "percentile": 0.6815304676064126 }, "sha256": "2e96e3c99cc62c337f7e36541350ee32aa02dabbb66bed703f639cb50021eb2c", "simhash": "1:a6b23a8b9eb481ab", "word_count": 2281 }, "last_updated": "2023-07-14T15:56:16.526311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Leroy Hall, Plaintiff-Appellant, v. Baum Corporation, d/b/a Washington Hotel, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DEMPSEY\ndelivered the opinion of the court:\nThe plaintiff, Leroy Hall, sued the defendant, the Baum Corporation, owner and operator of the Washington Hotel, for personal injuries received when he was an invitee of the hotel. A jury returned a verdict for the defendant and judgment was entered in accordance with the verdict. In this appeal Hall seeks a new trial because of alleged prejudicial errors, the principal ones being that the defendant impeached and improperly cross-examined its own witnesses and caused portions of a police report to be brought to the attention of the jury. Other errors relate to evidence, rulings of the trial court and instructions.\nThe defendant has not contested the appeal. If an appeal is perfected and the appellee does not file an answering brief, a court of review may reverse the judgment of the trial court without considering the merits of the appeal. (Ridge Manor Convalescent Home v. City of Chicago (1972), 4 Ill.App.3d 1077, 283 N.E.2d 272; Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42. However, it is this court\u2019s practice to examine the record to determine whether an injustice would be done an appellee by a summary reversal. (Jordan/Tamraz/Caruso/Advertising, Inc., v. Parker Career Center (1973), 10 Ill.App.3d 247, 294 N.E.2d 59; Metcoff v. Metcoff (1972), 4 Ill.App.3d 160, 280 N.E.2d 572.) After studying the record and the appellant\u2019s briefs we are of the opinion that he is entitled to reversal. Rather than reversing summarily, however, we will state the reasons for our decision.\nHall, an unemployed dockworker from Joliet, checked into the Washington Hotel in downtown Chicago about 1:00 A.M. on a humid April morning in 1964. He was assigned a room on the fifth floor. He testified that he had one or two cans of beer in the room and then, 45 minutes later, desired some fresh air. He was directed by an elevator operator to an open fire escape door on the eleventh floor. The fire escape consisted of stairs descending along the outside wall. On the eleventh floor there was a grated platform with a railing that had three approximately equidistant horizontal bars with vertical supports. The lowest bar on the railing opposite the doorway was defective in that it was bent downward about four inches at its lowest point. As Hall stood on the fire escape smoking a cigarette, with his right foot on the lowest bar to the right of the defect and his left foot on the platform, the door (which subsequent testimony indicated had been held open by a wire coat hanger) blew shut; the door struck him, he lost his balance and fell through the railing. He managed to seize the edge of the platform and screamed for help as he held on. He tried to pull himself back up, could not make it, lost his grip and plunged downward eleven floors.\nTwo police officers found Hall about 3:30 A.M., severely injured but still alive, on the trunk of an automobile directly below the fire escape. A supervising sergeant arrived and Hall was taken to Cook County Hospital. The sergeant summoned an evidence technician to the scene and called in two detectives to investigate the occurrence.\nThe detectives were Roger Niehoff and William Havansek. They saw Hall at the hospital and spoke to him. He was able to tell them that he went to the eleventh floor to get some air and was alone at the time he fell. The detectives then went to the Washington Hotel and proceeded with their investigation. They noticed that the bottom rung of the fire escape railing was bent and that it had a heel mark on it. Officer Stanley, the evidence technician, took photographs of the fire escape and fingerprints and scrapings of the raffing. Havansek prepared a report of the investigation. The second paragraph of the report said there were \u201cheel marks on the second rail, which later proved to be the heel marks from the victim\u2019s shoes.\u201d\nAt issue in the case- were the reasons for Hall\u2019s fall and the way he fell; whether the closing door had forced him through the railing, whether he had climbed on the railing and lost his balance or whether he had attempted suicide. It was important to the defendant to show that his fall was either deliberate or the result of his negligence. Proof that his heel prints were found on the second bar of the railing would have been of immeasurable value in establishing both defenses. In an effort to bring the second paragraph of the report to the jury\u2019s attention, Nie-hoff and Havansek were called as defense witnesses. Niehoff, the first to testify, said that he saw that the first rung was bent but did not notice anything unusual about the second one. Although there was no showing that the witness\u2019 memory was faulty or that he had exhausted it, the defendant\u2019s attorney asked him to look at the police report to refresh his recollection as to whether other rungs were examined. Niehoff looked at the report, said it refreshed his recollection but again said that he did not notice anything unusual about the second rung. The same procedure was repeated and repeated. The defendant\u2019s attorney showed the report to Niehoff five times and asked him if it refreshed his recollection \u2014 once he said \u201cto awaken your conscience\u201d \u2014 and five times Niehoff replied that he saw nothing on the second rung. In seeming desperation the attorney tried to bring out the content of the report. He asked Niehoff, \u201ccan you tell us what\u2019s contained in the second paragraph of that recording?\u201d and again, \u201cDidn\u2019t you cause to be recorded there, officer, the statement \u2014?\u201d An objection to the first question was sustained and an objection, also sustained, interrupted the second. On the third attempt the attorney was more successful. He was permitted, over objection, to ask, \u201c* * * did you ever record or say anywhere that you saw heel marks on the second rail?\u201d Niehoff replied, \u201cNot to my knowledge.\u201d The attorney then inquired: \u201cShowing you [the report], I ask you the question again.\u201d Niehoff responded, \u201cThis was not my recording, counsel.\u201d\nHavansek, who had drafted the report, was then called by th\u00e9 defendant. He was asked what he had noticed about the railing and he said that one rung was bent and a heel mark was on it. He, too, was asked five or six times if he noticed anything unusual about the other rungs and he was given the report to refresh his recollection \u2014 again without proof that his memory was exhausted. He replied that all the rungs had been examined but he remembered nothing unusual about any rung except that a heel mark was on the one that was bent. Havan-sek was asked, \u201cHow about the second rung?\u201d An objection was overruled and he answered, \u201cAccording to the report, it says the second railing had a heel mark on it.\u201d The defendant\u2019s attorney inquired, \u201cIt said Tieel marks,\u2019 didn\u2019t it?\u201d An objection to the attorney\u2019s reading from the report was overruled, but an objection for the same reason to the follow-up question, \u201cDid you therein record that there were heel marks \u2014,\u201d was sustained. The attorney then asked:\n\u201cOfficer, didn\u2019t you record that statement \u2018And heel marks on the second rail, which later proved to be heel marks from the victim\u2019s shoes\u2019?\u201d\nThe court instructed the jury to \u201cwholly and totally\u201d disregard the question. The court permitted, however, the attorney to ask:\n\u201cDid you record, Officer, that you found heel marks on the second railing?\u201d\nTo which the witness replied, \u201cYes, sir.\u201d\nThe court-enforced distinction between the questions resulted from revelations which came to light outside the presence of the jury. It was the evidence technician who had determined that the heel prints were made by Hall\u2019s shoes. Havansek merely recorded what the technician told him. The report, although composed and typed by Havansek, did not state that he himself had observed heel marks on the second rung. The testimony of Niehoff and Havansek was consistent throughout their examination. They said that they themselves had seen nothing unusual about the rungs except the lowest one; as far as they were concerned the reference in the report to the second rung was a mistake; they did not know of their own knowledge whether the heel mark they had seen corresponded with the heels of Hall\u2019s shoes for it was the technician who made the comparison. Both witnesses said the report refreshed their memories but were steadfast in saying that it did not alter their recollection of what their own investigation disclosed.\nUndoubtedly, the defendant\u2019s attorney was disappointed in their testimony. But his frustration was caused in part by his calling them as witnesses without knowing what their testimony would be. He did not take depositions from them nor from the technician and did not summon the technician as a witness. He had a copy of the police report and he relied on it. Moreover, the report itself was confusing. It was a compilation of four individual reports: one by the police officers who first found Hall on the parked auto; the technician\u2019s report, which detailed the procedures he utilized; Niehoff\u2019s and Havansek\u2019s own closing report and a supplemental report prepared by them. The supplemental report, which was used in examining the witnesses, was basically a two-page narrative of all the areas of inquiry and a synopsis of the evidence uncovered by all the police officers involved in the case. With minor exceptions the report did not differentiate between the second-hand knowledge Niehoff and Havansek obtained and what they observed themselves.\nWhen the defendant did not receive the evidence it expected from Niehoff and Havansek it attempted to impeach them by the supplemental report. Throughout their direct examination the defendant sought to divulge the contents of the report. By persistence and repetition it finally succeeded in revealing to the jury not only a part of the inadmissible report but a part containing hearsay information. The inadmissible disclosure bolstered the defendant\u2019s case but seriously prejudiced the plaintiff\u2019s. The prejudice was accentuated by the defendant\u2019s opening statement that the evidence would show that heel marks from Hall\u2019s shoes were on the second rung of the railing.\nThe general rule is that a party who calls a witness to testify cannot impeach his testimony. However, there are exceptions to the rule. If a witness unexpectedly gives testimony against the party calling him, that party may examine him to call his attention to former specific inconsistent statements. (People v. Wesley (1959), 18 Ill.2d 138, 163 N.E.2d 500.) If the trial court determines that a witness is hostile or unwilling he may be cross-examined by the party calling him. An occurrence witness may be impeached by proof of prior inconsistent statements if the party calling him shows that he called the witness in good faith and is surprised by his testimony. Ill. Rev. Stat. 1969, ch. 110A, par. 238.\nThe testimony in this case does not come within these exceptions. If the defendant was initially taken aback by Niehoffs testimony it was not by Havansek\u2019s, who testified after Niehoff. Neither witness was hostile or unwilling to testify. Neither was reticent, deceptive or evasive. Their only testimonial reluctance was their unwillingness to say what the defendant wanted them to. Furthermore, there was no judicial determination that they were either hostile or unwilling witnesses and they were not occurrence witnesses. An occurrence witness has personal knowledge of an event from being present when it takes place, such as a witness who observes an accident in which a personal injury was sustained. (Ballentine\u2019s Law Dictionary, 1969, 3d ed., p. 880.) Both Niehoff and Havansek arrived at the hotel after Hall had been taken to the hospital. They interrogated him there and then returned to the Washington Hotel. They were post-occurrence witnesses; they testified to their interview with Hall and to the condition of the premises after the event which formed the basis for the cause of action.\nEven if the court had found that the two detectives were hostile and had granted the defendant the right to cross-examine them, the defendant could only have shown that Havansek\u2019s report contained a statement at odds with his testimony. It had no right to prove anything beyond that. Police accident reports are inadmissible in evidence in whole or in part. (Ill. Rev. Stat. 1969, ch. 110A, par. 236.) They may be used for the limited purpose of impeachment as to inconsistent statements (Black v. DeWitt (1965), 55 Ill.App.2d 220, 204 N.E.2d 820) or to refresh a witness\u2019 recollection (Tuskey v. Callos (1969), 112 Ill.App.2d 213, 250 N.E.2d 524) but they cannot be used, as the defendant did, to divulge substantive evidence to the jury. Wolf v. City of Chicago (1966), 78 Ill.App.2d 337, 223 N.E.2d 231.\nThe report was used not to refresh faulty memories but to impeach the defendant\u2019s own witnesses, The repeated references to its contents and the readings from it not only served as attempted impeachment but as a substitute for competent evidence. The effect of the improper impeachment and references to the contents of the report was so prejudicial that it was not remedied by the diligent efforts and limiting instruction of the court.\nThe cause is reversed and remanded. In view of this result it is unnecessary to consider the other claims of error.\nReversed and remanded.\nMcNAMARA and McGLOON, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE DEMPSEY" } ], "attorneys": [ "A. J. Horwitz and Dario A. Garibaldi, both of Horwitz, Anesi and Ozmon, of Chicago, for appellant.", "No appearance for appellee." ], "corrections": "", "head_matter": "Leroy Hall, Plaintiff-Appellant, v. Baum Corporation, d/b/a Washington Hotel, Defendant-Appellee.\n(No. 55420;\nFirst District (3rd Division)\nJune 7, 1973.\nA. J. Horwitz and Dario A. Garibaldi, both of Horwitz, Anesi and Ozmon, of Chicago, for appellant.\nNo appearance for appellee." }, "file_name": "0755-01", "first_page_order": 775, "last_page_order": 781 }