O'Brien v. Walker, 49 Ill. App. 3d 940

364 N.E.2d 533 (Ill. App. Ct. 1977) · Appellate Court of Illinois, First District, Fifth Division · June 3, 1977 · No. No. 63169

Summary

The Illinois Appellate Court affirmed a judgment for defendants in a personal-injury automobile collision case. The court held that requiring a nonresident party's appearance under Illinois Supreme Court Rule 237(b) was within the trial court's discretion and that the plaintiff failed to demonstrate prejudice from the use of the party's evidence deposition. The court also rejected the plaintiff's challenges to evidentiary rulings concerning estimates of speed, a spontaneous declaration, and impeachment of a defense witness.

Holdings

  1. Illinois Supreme Court Rule 237(b) does not make a party's personal appearance mandatory upon service of a notice; compelling the appearance of a party is a matter within the sound discretion of the trial court.
  2. The trial court did not abuse its discretion by refusing to order Walker to return for trial because his evidence deposition was available, plaintiff had agreed to its taking, and plaintiff failed to demonstrate prejudice or impaired cross-examination.
  3. The record did not establish reversible error from refusal to compel Walker's appearance because the subpoena was not part of the record and, in any event, it directed Walker to appear on a date and before a judge different from the eventual trial.
  4. The trial court's evidentiary rulings did not warrant reversal because the speed testimony was admissible when adequately founded, the excluded speed estimate was not preserved by an offer of proof, and the impeachment rulings were within the trial court's discretion and caused no demonstrated prejudice.
  5. The statement satisfied the criteria for admission as a spontaneous declaration or excited utterance, but its exclusion was harmless because the fact and timing of the exclamation were already before the jury and plaintiff stated that the words themselves were not material.

Questions Presented

  1. Whether the trial court erred by refusing to order nonresident defendant Stephen Walker to appear personally at trial after plaintiff served a notice under Illinois Supreme Court Rule 237(b).
  2. Whether the trial court erred by refusing to order Walker's appearance based on a purported trial subpoena.
  3. Whether the trial court committed prejudicial error in rulings concerning witness estimates of vehicle speed.
  4. Whether the trial court improperly excluded an alleged spontaneous declaration or excited utterance.
  5. Whether the trial court abused its discretion in restricting plaintiff's attempted impeachment of defense witness William Hillard.

Disposition

affirmed

Cases Cited (29)

  • Huff v. Illinois Central R.R. Co., 4 Ill. App. 3d 113, 280 N.E.2d 256 (1972)(distinguished)
  • Scott v. Hernon, 3 Ill. App. 3d 172, 278 N.E.2d 259 (1971)(distinguished)
  • Quagliano v. Johnson, 100 Ill. App. 2d 444, 241 N.E.2d 187 (1968)(distinguished)
  • Blakely v. Johnson, 37 Ill. App. 3d 112, 116, 345 N.E.2d 814, 816 (1976)(followed)
  • In re Armour, 59 Ill. 2d 102, 319 N.E.2d 496 (1974)(followed)
  • National Bank of Albany Park v. Newberg, 7 Ill. App. 3d 859, 865, 289 N.E.2d 197, 201 (1972)(followed)
  • Levine v. Pascal, 94 Ill. App. 2d 43, 59, 236 N.E.2d 425, 432 (1968)(followed)
  • Cox v. Yellow Cab Co., 16 Ill. App. 3d 665, 306 N.E.2d 738 (1973), aff'd, 61 Ill. 2d 416, 337 N.E.2d 15 (1975)(followed)
  • Cohn v. Board of Education, 118 Ill. App. 2d 453, 254 N.E.2d 803 (1970)(followed)
  • Welsh v. Jakstas, 401 Ill. 288, 82 N.E.2d 53 (1948)(followed)

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