Bireline v. Espenscheid

• Decision Date: 30 November 1973
• Docket Number: No. 73--22,73--22
• Citation: 15 Ill.App.3d 368,304 N.E.2d 508
• Parties: Esther BIRELINE and Robert S. Bireline, Plaintiffs-Appellees, v. Glen ESPENSCHEID, Individually, and d/b/a Lake Club et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 508

304 N.E.2d 508

15 Ill.App.3d 368

Esther BIRELINE and Robert S. Bireline, Plaintiffs-Appellees, v. Glen ESPENSCHEID, Individually, and d/b/a Lake Club et al.,

Defendants-Appellants.

No. 73--22.

Appellate Court of Illinois, Third District.

Nov. 30, 1973.

James E. Bowles, Heyl, Royster, Voelker & Allen, Peoria, for defendants-appellants.

R. Lawrence Ball, Peoria, for plaintiffs-appellees.

DIXON, Justice:

The plaintiffs, Ester Bireline and her husband Robert S. Bireline brought this action pursuant to the Dram Shop Act. After a jury trial the Circuit Court of Tazewell County entered judgment on the verdicts in favor of each plaintiff. Defendants appeal from those judgments.

On June 28, 1969 plaintiffs were returning from Peoria to their home in Washington, Illinois, proceeding easterly on the south lane of the state highway when an automobile driven by Charles McGonagle in a westerly direction crossed over the center line onto the south half of the highway and collided head-on with the Bireline car.

McGonagle had a passenger in his automobile by the name of Pete Ramirez. McGonagle did not testify at the trial as he disappeared shortly after the accident and could not be located. Ramirez gave an evidence deposition on June 6, 1972.

On the afternoon of June 28, 1969 he and McGonagle first drank a six pack at his apartment and then both decided to drive to Metamora. McGonagle stopped at the Lake Club on the left side of the highway as one proceeds toward Metamora. Ramirez specifically named the Lake Club as being the tavern where they stopped and he described in detail the entrance to the Lake Club as well as the interior and exterior of the premises. McGonagle drank three or four bottles of beer in the Lake Club before they went on to the Parr residence in Metamora. After remaining in the Parr residence for fifteen or twenty minutes McGonagle drove back toward Peoria and again stopped at the Lake Club where he again drank three or four more beers.

McGonagle continued to drive when he and Ramirez left the Lake Club and proceeded toward Peoria. Shortly prior to the accident McGonagle crossed the center line of the two lane highway several times as well as getting off onto the shoulder of the road. Ramirez reprimanded him for the manner in which he drove and testified that McGonagle was 'feeling his beer', 'pretty well on the way to being intoxicated' and his speech was 'kind of slurry'.

Defendants first contend that the trial court erred in failing to give retroactive application to a 1971 amendment to the Dram Shop Act which eliminated the words 'in whole or in part' from the Act.

The cause of action in this case arose on June 28, 1969. The complaint was filed June 22, 1970. On similar facts we recently held in Edenburn v. Riggins, Ill.App., 301 N.E.2d 132, that the 1971 amendment was not given retroactive application.

An offer of proof by defendants showed that most of the medical expenses incurred by Bireline were paid by his health insurance carrier. (Group Health Insurance)

Defendants agree that injury to property under the Dram Shop Act occurs when either payment is made or responsibility for payment is incurred pursuant to the Family Expense Act. They argue that 'although no payment of these expenses is necessary in order to recover, we submit that the theory of the court in allowing recovery for these expenses without prior payment is that any moneys recovered would be to satisfy this obligation, not to give the plaintiff a double recovery, and that 'Collateral Source' is not involved.' They cite no appropriate cases. 'Collateral Source' is indeed involved. It is the rule of damages that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable. 22 Am.Jur.2d Damages, Sec. 206.

The general rule is that the tortfeasor cannot decrease his damages by the amount of hospitalization or medical insurance payments received by the injured party where the tortfeasor did not contribute to the payment of the premiums of the insurance. 22 Am.Jur.2d Damages, Sec. 210. Geisberger v. Quincy, 3 Ill.App.3d 437, 441, 278 N.E.2d 404; Grant v. Paluch, 61 Ill.App.2d 247, 260, 210 N.E.2d 35.

At the time the evidence deposition was taken the witness Ramirez was asked if he could identify the building operated as the Lake Club on June 29, 1969. To conclude the evidence deposition of Ramirez he was taken to the accident scene and then to the site of the former Lake Club where he identified the building. The defendant's attorney inquired as to whether this would be 'put on the record' and upon being advised that it would he replied, 'go ahead'. He further remarked that there was no point in his going along. He made no objection.

The trial defense counsel (another member of the firm) objected to the admission of the testimony of Ramirez taken at the accident scene and at the site of the former Lake Club. The trial court overruled the objections stating that 'defense counsel had every opportunity to be present if he so desired and had waived any objection.'

Defendants at the trial raised 3 objections. First, that leading questions were asked and answered. Second, that the testimony was improper re-direct examination as being beyond the scope of defendant's cross-examination. Third, that the trial court allowed a picture attached to the evidence deposition, and identified as the building where the Lake Club was located in June, 1969, by Ramirez, before such picture was developed to be admitted into evidence.

As to the third contention the record shows that it is simply not true. The record shows that a photograph of the Dahl Auto Salvage building (formerly the Lake Club) was taken by the photographer on June 6, 1972 in the presence of Ramirez and was subsequently attached to the evidence deposition of Ramirez and was marked for identification as Plaintiff's Evidence Deposition Exhibit 3. At no time did the jury see this Exhibit 3 nor was it ever offered in evidence or shown to the jury.

The photograph which was introduced into evidence was Plaintiff's Exhibit 5. The foundation proof for it was made by Louis Cornish, a defendant, the owner of the building.

As to the first contention that leading questions were asked and answered it is obvious from a reading of 211(c)2 below that such objection must be made at the time of the taking of the deposition.

Supreme Court Rule 211(c) pertaining to depositions provides in pertinent part:

'(1) Grounds of objection to the * * * admissibility of testimony which might have been corrected if presented during the taking of the deposition are waived by failure to make them at that time; * * *

(2) Objections to the form of a question or answer * * * which might be corrected if promptly presented are waived unless seasonable objection thereto is made at the taking of the deposition.'

In Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 131, 253 N.E.2d 636, 646, the court said, 'Thus the rule requires objections to be made as to the form of questions or admission of testimony which might have been corrected at the time of the taking of the deposition or the objection is waived. * * * Since it was not made at the taking of the deposition, this objection was waived.'

On appeal in 46 Ill.2d 288, 298, 263 N.E.2d 103 the Appellate Court was affirmed. Also, see 16 I.L.P. Depositions §§ 52 and 53.

As to the second contention defendants argue that Supreme Court Rule 206(c)(2) is...