{
  "id": 4986775,
  "name": "Dorothy Lewis Jacobs, Respondent, v. Mutual Life Insurance Company of New York, Petitioner",
  "name_abbreviation": "Jacobs v. Mutual Life Insurance Co. of New York",
  "decision_date": "1950-06-30",
  "docket_number": "Gen. No. 45,064",
  "first_page": "293",
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  "last_updated": "2023-07-14T17:05:03.989877+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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    "judges": [],
    "parties": [
      "Dorothy Lewis Jacobs, Respondent, v. Mutual Life Insurance Company of New York, Petitioner."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Lewe\ndelivered the opinion of the court.\nDefendant appeals from an order granting a new trial in an action by the named beneficiary to recover death benefits on two life insurance policies issued by defendant. A jury trial resulted in a verdict finding the issues in favor of defendant and judgment was entered accordingly.\nThe record discloses that the trial court granted a new trial solely on the ground that the deposition of one Dr. George L. Perusse \u201cwas erroneously admitted and allowed to be read in evidence.\u201d In granting a new trial for the reasons stated the trial judge ruled on a question of law which is subject to review. (Lutgert v. Schaeflein, 318 Ill. App. 83; Nordhaus v. Marek, 317 Ill. App. 351; Randall v. Randall, 281 Ill. App. 169; C. J. S., sec. 1620, p. 526.)\nPlaintiff argues that defendant took the depositions of Dr. Perusse under the provisions of Eule 19 of our Supreme Court [Ill. Rev. Stat. 1949, ch. 110, par. 259.19; Jones Ill. Stats. Ann. 105.19] for the purpose only of discovery.\nThe facts are uncontroverted. October 27, 1948, counsel for defendant caused a notice to be served upon plaintiff\u2019s counsel stating that at two o\u2019clock p. m. on the fifth day of November 1948 the deposition of George L. Perusse, M. D., would be taken on behalf of defendant before William J. Mitchell, a notary public. Accompanying the notice. was an affidavit stating among other things that George L. Perusse was a necessary and material witness for the defendant on the trial of said cause and that Dr. Perusse was unable to attend the trial on account of sickness. On the same day the affidavit was filed with the clerk of the superior court. November 5,1948, Dr. Perusse appeared before the notary public named in the notice and upon being sworn answered certain oral interrogatories propounded by counsel for defendant. After the testimony was transcribed in typewritten form it was signed by the witness, certified to by the notary public, sealed in an envelope, and delivered to the clerk of the superior court who in turn filed the envelope in the court file where it remained until opened in open court at the trial.\nDecember 2, 1948, a similar notice was served' on plaintiff\u2019s counsel stating that on December 9th the deposition of Dr. Perusse would be taken on behalf of defendant before the same notary public. December 9th, 1948, Dr. Perusse appeared again, was sworn and answered interrogatories which were likewise transcribed, signed by the witness, and certified by the notary public, sealed in an envelope and delivered to the clerk of the superior court where it remained until the seal was broken in open court at the time of the trial. Plaintiff\u2019s counsel did not appear at either of the examinations of Dr. Perusse before the notary public. Copies of the transcripts of both examinations of the witness were sent to plaintiff\u2019s counsel.\nObjections were raised to the depositions for the first time when defendant\u2019s counsel attempted to read them in evidence at the trial, on the ground, first, that the affidavit filed in the proceeding was not sufficient and, second, that the witness was not shown to be unavailable for the trial.\nThe contention that Dr. Perusse\u2019s depositions were taken under Rule 19 was first made on plaintiff\u2019s motion for a new trial.\nSection 25 of the Illinois Evidence and Depositions Act, Ill. Rev. Stat. 1949, ch. 51 [Jones Ill. Stats. Ann. 107.090], provides: \u201cIt shall be lawful, upon satisfactory affidavit being filed, to take depositions of witnesses residing in this State to be read in suits at law . . . where the witness ... is unable to attend such court on account of advanced age, sickness or other bodily infirmities.\u201d Plaintiff\u2019s objections to the depositions, made for the first time at the trial, came too late. See In re Kettles, 365 Ill. 168.\nThe affidavits filed by defendant show that the depositions of Dr. Perusse were taken because he was unable to attend the trial \u201con account of sickness.\u201d This is one of the grounds named in section 25 of the Evidence and Depositions Act, and does not appear in any of the other sections, and would put the plaintiff upon notice that the depositions were taken under section 25. Moreover, the fact that the depositions were signed by the witness, certified by the notary public, sealed, and returned to the clerk of the court, where they were filed, would also indicate that it was the intention of the defendant to use them at the trial. In our opinion the notices of the taking of the depositions were in substantial compliance with the statute. The rule seems well established in Illinois that depositions taken under the Evidence and Depositions Act, as here, can be read in evidence at the trial without further proof of the availability of the deponent. See Kristel v. Michigan Cent. R. Co., 213 Ill. App. 518, and cases there cited.\nIn the view we take of this case it is unnecessary to consider the other points raised.\nFor the reasons assigned, the order granting a new trial is reversed and the cause is remanded with directions to enter judgment in favor of the defendant and against the plaintiff.\nOrder reversed and cause remanded with directions.\nBurke and Kilby, JJ., concur.",
        "type": "majority",
        "author": "Mr. Presiding Justice Lewe"
      }
    ],
    "attorneys": [
      "Winston, Strawn, Shaw & Black, of Chicago, for appellant; Louis W. Dawson, George B. Christensen, Gerard E. Grashorn and Neil McKay, all of Chicago, of counsel.",
      "Root & Harman, of Chicago, for appellee; Russell W. Root and Oscar W. Harman, both of Chicago, of counsel."
    ],
    "corrections": "",
    "head_matter": "Dorothy Lewis Jacobs, Respondent, v. Mutual Life Insurance Company of New York, Petitioner.\nGen. No. 45,064.\nHeard in the third division of this court for the first district.\nOpinion filed June 30, 1950.\nRehearing denied July 21, 1950.\nReleased for publication July 25, 1950.\nWinston, Strawn, Shaw & Black, of Chicago, for appellant; Louis W. Dawson, George B. Christensen, Gerard E. Grashorn and Neil McKay, all of Chicago, of counsel.\nRoot & Harman, of Chicago, for appellee; Russell W. Root and Oscar W. Harman, both of Chicago, of counsel."
  },
  "file_name": "0293-01",
  "first_page_order": 319,
  "last_page_order": 323
}