{ "id": 5489385, "name": "John M. Bolkhardt, Appellee, v. Phillip J. Edwards, Appellant", "name_abbreviation": "Bolkhardt v. Edwards", "decision_date": "1923-10-17", "docket_number": "Gen. No. 27,941", "first_page": "640", "last_page": "642", "citations": [ { "type": "official", "cite": "230 Ill. App. 640" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "24 Ill. 332", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5286796 ], "opinion_index": 0, "case_paths": [ "/ill/24/0332-01" ] }, { "cite": "24 Ill. 323", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5286156 ], "opinion_index": 0, "case_paths": [ "/ill/24/0323-01" ] }, { "cite": "22 Ill. 278", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5279837 ], "opinion_index": 0, "case_paths": [ "/ill/22/0278-01" ] }, { "cite": "19 Ill. 556", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441643 ], "opinion_index": 0, "case_paths": [ "/ill/19/0556-01" ] } ], "analysis": { "cardinality": 307, "char_count": 5666, "ocr_confidence": 0.516, "pagerank": { "raw": 9.994281953049937e-08, "percentile": 0.5384771467371263 }, "sha256": "8f4a51c6bde39d09356521a5177c840ad88b65469b07ae91d00f67d84edc6cd3", "simhash": "1:79712bdfd205478e", "word_count": 958 }, "last_updated": "2023-07-14T19:30:34.383447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John M. Bolkhardt, Appellee, v. Phillip J. Edwards, Appellant." ], "opinions": [ { "text": "Mr. Justice Thomson\ndelivered the opinion of the court.\nBy this appeal the defendant, Edwards,' seeks to reverse a judgment for $139.75, recovered against him in the municipal court of Chicago by the plaintiff, Bolkhardt, in an action brought by the latter, based on a claim for. damages sustained by his automobile in a collision with an automobile driven by the defendant, which collision was alleged to be the result of the defendant\u2019s negligence.\nThe only witness who testified to the circumstances of the collision, on behalf of the plaintiff, was the plaintiff\u2019s wife. At the time of the accident she was driving the plaintiff\u2019s car and her twelve-year-old daughter was with her. The defendant contends that the testimony of the plaintiff\u2019s wife was erroneously admitted, so far as it related to the circumstances of the accident, and by reason of such error this court is asked to reverse the judgment.\nSection 1 of our statute on Evidence [Cahill\u2019s Ill. St. ch. 51, [f 1] removes the common-law disability of parties and persons interested in the event, of the suit as witnesses. Section 5 of the same act [Cahill\u2019s Ill. St. ch. 51, [\u00b6] 5] deprives husband and wife of all benefit of section 1, except in certain specific cases. It seems clear that Mrs. Bolkhardt did not come within any of the exceptions mentioned in the latter section, and, therefore, her testimony, which was objected to on the trial of the case, was incompetent, unless it would have been admissible at common law. In Parmelee v. McNulty, 19 Ill. 556; Davis v. Michigan Southern & N. I. Ry. Co., 22 Ill. 278; Illinois Cent. R. Co. v. Taylor, 24 Ill. 323, and Illinois Cent. R. Co. v. Copeland, 24 Ill. 332, it was held that a party in interest and also the wife of such a party might be permitted to testify as to the contents of lost baggage. The court recognized this as an exception to the general rule that a party in interest wras disqualified as a witness by such interest, but .placed the exception on \u201cthe necessity of the case.\u201d\nWe are disposed to give the rules of evidence as 'liberal a construction as the law permits. Applying that general rule to the situation presented in the ease at bar, we would be inclined to hold that by reason of \u201cthe necessity of the case\u201d the wife might be permitted to testify for the plaintiff, her husband, in an action brought by him to recover damages to his automobile, which damages he alleged were caused by the defendant, in a collision with the plaintiff\u2019s car, when the latter was being driven by his wife, she being alone at the time and there being no other witnesses to the accident, \u2014 and this, not on the theory that such an occurrence is covered by any situation set forth in section 5 of the Evidence Act, but rather on the theory that such evidence would be admissible at common law. In changing the common-law rules of evidence, by the passage of our statute, it was sought not to restrict the common-law rules but to liberalize them. However, in the case at bar the necessity above referred to is not established. It appears from the evidence that the plaintiff\u2019s young daughter was with her mother at the time of the occurrence in question and also that a policeman was either present and witnessed the accident or came up immediately after it.\nUnder the circumstances we are of the opinion that the rules of evidence, even giving them the liberal construction we are disposed to, are such as to make the objections which the defendant interposed to the questions put to the plaintiff\u2019s wife, relating to the circumstances of the collision, good, and they should therefore, have been sustained.\nFor the reasons stated the judgment of the municipal court is reversed and the cause is remanded to that court for further proceedings not inconsistent with this opinion.\nJudgment reversed and cause remanded.\nTaylor, P. J., and O\u2019Connor, J., concur.", "type": "majority", "author": "Mr. Justice Thomson" } ], "attorneys": [ "Miller, Gorham, Wales & Noxon, for appellant.", "No appearance for appellee." ], "corrections": "", "head_matter": "John M. Bolkhardt, Appellee, v. Phillip J. Edwards, Appellant.\nGen. No. 27,941.\n1. Witnesses \u2014 statutory disability of wife as witness for husband to circumstances of automobile collision. In an action' by a husband for damages to his automobile sustained in a collision with defendant\u2019s automobile, alleged to have resulted from defendant\u2019s negligence, plaintiff\u2019s wife, who was driving his car when the collision occurred, is incompetent to testify to the circumstances of the collision, under the provisions of the statute on Evidence, sec. 5, Cahill\u2019s Ill. St. ch. 51, If 5, depriving husband and wife of the benefits of section 1, removing the common-law disability of parties .and persons in interest as witnesses, except in certain specific instances, where it appears that plaintiff\u2019s wife does not come within any of the exceptions mentioned.\n2. Witnesses \u2014 testimony of plaintiff\u2019s wife not admissible in his behalf under rule of \u201cnecessity\u201d where other witnesses available. The statutory disability of a wife to testify in behalf of her husband as to the circumstances of an automobile collision in which the husband\u2019s car was damaged is not removed by \u201cnecessity of the case\u201d where it appears that at the time of the collision she was driving her husband\u2019s car accompanied b'y her twelve-year-old daughter who witnessed the occurrence and that a policeman was present and witnessed the accident or came to the scene immediately thereafter.\nAppeal by defendant from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1922.\nReversed and remanded.\nOpinion filed October 17, 1923.\nMiller, Gorham, Wales & Noxon, for appellant.\nNo appearance for appellee." }, "file_name": "0640-01", "first_page_order": 668, "last_page_order": 670 }