{ "id": 2428555, "name": "Lois Jane Petersen, Administratrix of Estate of Clarence Robert Petersen, Deceased, Plaintiff-Appellant, v. Midwest Transfer Company of Illinois and Floyd Johnson, Defendants-Appellees", "name_abbreviation": "Petersen v. Midwest Transfer Co.", "decision_date": "1951-05-31", "docket_number": "Gen. No. 9,720", "first_page": "167", "last_page": "174", "citations": [ { "type": "official", "cite": "344 Ill. App. 167" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "211 Ill. App. 474", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3025161 ], "opinion_index": 0, "case_paths": [ "/ill-app/211/0474-01" ] }, { "cite": "189 Ill. App. 556", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2907823 ], "opinion_index": 0, "case_paths": [ "/ill-app/189/0556-01" ] }, { "cite": "176 Ill. App. 292", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5353637 ], "opinion_index": 0, "case_paths": [ "/ill-app/176/0292-01" ] }, { "cite": "173 Ill. App. 187", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2764304 ], "opinion_index": 0, "case_paths": [ "/ill-app/173/0187-01" ] }, { "cite": "209 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3301796 ], "opinion_index": 0, "case_paths": [ "/ill/209/0550-01" ] }, { "cite": "399 Ill. 497", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460756 ], "opinion_index": 0, "case_paths": [ "/ill/399/0497-01" ] }, { "cite": "138 Ill. 612", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5445079 ], "opinion_index": 0, "case_paths": [ "/ill/138/0612-01" ] }, { "cite": "222 Ill. 494", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3340286 ], "opinion_index": 0, "case_paths": [ "/ill/222/0494-01" ] }, { "cite": "125 Ill. 600", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2936708 ], "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/ill/125/0600-01" ] }, { "cite": "216 Ill. 309", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3359446 ], "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill/216/0309-01" ] }, { "cite": "371 Ill. 113", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2519816 ], "opinion_index": 0, "case_paths": [ "/ill/371/0113-01" ] }, { "cite": "24 Ill. 387", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5287157 ], "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill/24/0387-01" ] }, { "cite": "7 Ill. 371", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2558496 ], "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/ill/7/0371-01" ] } ], "analysis": { "cardinality": 562, "char_count": 10848, "ocr_confidence": 0.543, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.0807886869080012 }, "sha256": "1147de9bc935ee518c297654aad18786113dfc3dd6adb3e3a46ce1b2f979e78a", "simhash": "1:22e2daac7e6c8e50", "word_count": 1899 }, "last_updated": "2023-07-14T16:09:22.709040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lois Jane Petersen, Administratrix of Estate of Clarence Robert Petersen, Deceased, Plaintiff-Appellant, v. Midwest Transfer Company of Illinois and Floyd Johnson, Defendants-Appellees." ], "opinions": [ { "text": "Mr. Justice Dady\ndelivered the opinion of the court.\nPlaintiff, as administratrix of the estate of Clarence Robert Petersen, deceased, brought this action under the Wrongful Death Act (Ch. 70 R. S.) against Midwest Transfer Company of Illinois and Floyd Johnson. The circuit court entered judgment against the plaintiff on a jury verdict finding the defendant not guilty.\nPlaintiff brings this appeal from such judgment.\nOn the night of July 27-28, 1948, about nine p. m., the decedent, Clarence Robert Petersen, accompanied by Therlow Marshall was driving southerly on Route 51 a small truck owned by Marshall. The defendant Floyd Johnson, as agent of the other defendant, was then driving northerly on the same route a tractor-trailer truck owned by such other defendant. A collision then occurred between the two trucks which resulted in the deaths of Petersen and Marshall.\nThere was no competent eyewitness to the collision.\nSo far as is now material, the complaint charged that defendants negligently drove the tractor-trailer truck on the west side of the road and that as a direct result of such negligence the two vehicles collided, causing the death of Petersen. The answer of defendants denied all charges of negligence.\nThe first contention of plaintiff is that the trial court erred in refusing to permit plaintiff in her case in chief to prove statements made under oath by defendant Johnson at a coroner\u2019s inquest held on the death of decedent.\nThe trial court, on objection of defendants, refused to permit a court reporter (who reported the testimony of Johnson at the inquest) to testify to anything Johnson testified to at such inquest, \u2014 solely because Johnson was present in court at the time of the trial in the present proceeding and could then be called to testify by the plaintiff.\nThereupon in the absence of the jury the plaintiff offered to prove that the following questions were asked of Johnson at the inquest and that he made the following answers to such questions:\n\u201cQ You were traveling north on Route 51?\n\u201cA Yes, sir.\n\u201cQ Where did this collision occur?\n\u201cA About five miles south of Bloomington on 51.\n\u201cQ You say they went on the shoulder, which shoulder ?\n\u201cA On the west shoulder.\n\u201cQ Could you see how much of the truck went off the pavement?\n\u201cA Well, I am sure the right side the whole right side was off the pavement.\n\u2018 \u2018 Q Bid you see the truck come back on to the pavement?\n\u201cA No, sir, I couldn\u2019t because it happened so quick. The last track I seen of the truck he was on the shoulder. The next thing I knew he was right back under me.\n\u2018 \u2018 Q The last that you saw the truck was when your cab was along the side of it and at that time they were off the pavement, is that right?\n\u201cA Yes, sir.\n\u201cQ Approximately at what speed were you traveling?\n\u201cA Approximately forty miles an hour.\n\u201cQ Wh.en the Marshall truck was on the shoulder even with your truck was it more than half on the highway or half off?\n\u201cA Well, sir, I couldn\u2019t say cause I had my own outfit to look after.\n\u2018 \u2018 Q In your opinion the other truck was off the pavement at the time it passed your tractor?\n\u201cA Yes, sir.\n\u201cQ How much off the pavement, you do not know?\n\u201cA I could not say.\u201d\nThereupon the trial court refused such offer saying, \u201cI don\u2019t think it is proper to offer the coroner\u2019s inquest in view of the fact that the defendant is here, the defendant is here in court. \u2019 \u2019\nThereupon the plaintiff, out of the hearing of the jury, called the defendant Johnson as an adverse witness and offered to prove by him that such questions were asked him and such answers were made by him at such inquest. Thereupon the trial court asked plaintiff\u2019s counsel if he was willing to waive the statutory disqualification of such witness as to anything \u201cthat may have transpired before the coroner\u2019s jury,\u201d and plaintiff\u2019s counsel said \u201cNo.\u201d Thereupon the court sustained the objection to such offer of proof.\nJohnson was not permitted to later testify as a witness in his own behalf because of his being an incompetent witness.\nIt is our opinion that if such testimony offered by plaintiff had been admitted the jury might well have believed that such testimony, considered in connection with circumstantial evidence, fairly tended to prove that at and immediately prior to the time of the collision the tractor-trailer truck was so far westerly of the center of the road as to require the decedent Petersen, in the exercise of due care, to drive on to the west shoulder in order to try to avoid a collision. Therefore, in our opinion such evidence was material to the issues.\nIn Chase v. Debolt, 7 Ill. 371, 373, the court stated that what a party may have stated on a former trial, although under oath as a witness, \u201cis most clearly admissible as an admission, although compulsory. \u2019 \u2019\nIn Robbins v. Butler, 24 Ill. 387, 427, the court said: \u2018 \u2018 The admissions of a party to a fact, no matter when made or how made, are evidence against him\u2014 no matter if they be found in an answer in chancery, in a letter, or proved in some other mode. They are still his admissions, and can be used against him.\u201d\nIn the case of In re Ellis, 371 Ill. 113, a disbarment proceeding, the testimony of Ellis in a trial in a different proceeding was held competent as an admission.\nIn Miller v. People, 216 Ill. 309, 312, the court said:\n\u201cIt was entirely proper for the prosecution to prove on the second hearing any statements that the plaintiff in error had made when testifying in his own behalf on the first trial. Admissions and statements made by him as a witness were competent to be received in evidence against him to the same extent as if the statements and admissions had been made by him out of court. \u2019 \u2019\nIn Brown v. Calumet River Ry. Co., 125 Ill. 600, 605, the court said: \u201cApart from this, however, it is always competent to prove an admission of a party in interest to his prejudice, where it relates to a matter material to an issue being tried. (1 G-reenleaf on Evidence, sec. 172,) and therefore, although this'evidence may not have been competent for the purpose of impeaching Brown, it was competent as proving an admission by him against his interest, and in that view it was not necessary that he should have been previously examined in regard to it.\u201d\nIn Merchants Loan & Trust Co. v. Egan, 222 Ill. 494, the court said: \u201cBy introducting Sexton\u2019s testimony taken at the hearing on the citation in the probate court he was not thereby called as a witness by the adverse party, and his incompetency as a witness, outside of the admissions made on this examination, was not affected. He was called as a witness by appellee on the hearing below and asked one or two questions as to the possession of the bonds. This appellee clearly had a right to do without making him a witness as to all questions, under the first exception to said section 2, which states that in any such action, suit or proceeding a party or interested person may testify to facts occuring after the death of such deceased person, etc.\u201d (Emphasis ours.)\nDefendants cite Campbell v. Campbell, 138 Ill. 612, and George v. Moorhead, 399 Ill. 497, each of which cases merely held that the former testimony of a witness who is present and testifies is incompetent except for contradiction. In neither one of these cases was it held that former admissions of a proper party to a proceeding were not admissible against such party until after such party had testified.\nDefendants cite Knights Templars & Masons Life Indemnity Co. v. Crayton, 209 Ill. 550, which case we do not consider in point. In that case Frank L. Cray-ton when a minor aged 17 years testified at an inquest on the death of his father. The defendant insurance company offered in evidence Frank\u2019s deposition as an admission against interest. The Supreme Court said such deposition was properly excluded because he was a witness at the trial and the defendant had had an opportunity to impeach him by use of the deposition, and because he was a minor and therefore incapable of making a binding admission.\nDefendants cite Miles v. Court of Honor, 173 Ill. App. 187; Grant v. Chicago & N. W. R. Co., 176 Ill. App. 292; Devine v. Johnston & Jennings Co., 189 Ill. App. 556, and Culver v. Harris, 211 Ill. App. 474, in which or in some of which cases it was stated in general terms that depositions of witnesses at a coroner\u2019s inquest are not admissible as original testimony but only for the purpose of impeachment. In no one of such cases does it appear that any such witness at the inquest was a party to the later court proceeding.\nIt is our opinion that the trial court committed reversible error in excluding such evidence so offered by the plaintiff as admissions against the defendant Floyd Johnson.\nPlaintiff next contends that the trial court erred in permitting a witness for defendants, who was at the scene shortly after the accident, to testify as to the point of impact. In answer to a question the witness said:\n\u201cA Well, there was mud and debris at a point that we had determined as the point of impact.\n\u201cQ Where was it?\n\u201cA That was on the right side of the black line.\u201d\nAlthough the conclusion of the witness as to the point of impact was improper, we believe there was no reversible error inasmuch as it does not appear that defendants deliberately sought such answer and inasmuch as the court later sustained an objection to such opinion of the witness as to the point of impact.\nThe remaining contention of plaintiff is that the trial court erred in admitting evidence relative to a blood test of decedent\u2019s blood made after decedent\u2019s death. Inasmuch as there must be a new trial in this cause, we consider it sufficient to say that in our opinion there is no merit to such contention.\nDefendants-appellees filed in our court a supplemental abstract of the record and have moved this court to either strike the abstract of the record filed by plaintiff or, in the alternative, to tax the costs of the supplemental abstract against plaintiff. It is our opinion the abstract filed by plaintiff is sufficient to present fully every error relied upon and there was no occasion for filing a supplemental abstract. Such motions of defendants are denied.\nThe judgment of the trial court is reversed and the cause is remanded for a new trial.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Dady" } ], "attorneys": [ "Stone, Stone & Hess, and Bernard E. Wall, both of Bloomington, for appellant.", "Heyl, Royster & Voelker, of Peoria, and L. Earl Bach, of Bloomington, for appellees; Clarence W. Heyl, and William J. Voelker, Jr., both of Peoria, of counsel." ], "corrections": "", "head_matter": "Lois Jane Petersen, Administratrix of Estate of Clarence Robert Petersen, Deceased, Plaintiff-Appellant, v. Midwest Transfer Company of Illinois and Floyd Johnson, Defendants-Appellees.\nGen. No. 9,720.\nOpinion filed May 31, 1951.\nRehearing denied September 4, 1951. Released for publication September 4, 1951.\nStone, Stone & Hess, and Bernard E. Wall, both of Bloomington, for appellant.\nHeyl, Royster & Voelker, of Peoria, and L. Earl Bach, of Bloomington, for appellees; Clarence W. Heyl, and William J. Voelker, Jr., both of Peoria, of counsel." }, "file_name": "0167-01", "first_page_order": 201, "last_page_order": 208 }