Brennan v. Leshyn

• Decision Date: 03 July 1964
• Docket Number: Gen. No. 49247
• Citation: 51 Ill.App.2d 132,201 N.E.2d 167
• Parties: Joseph M. BRENNAN and Henry W. Stepo, Plaintiffs-Appellees, v. Joseph LESHYN, d/b/a Leshyn Greenhouses, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 167

201 N.E.2d 167

51 Ill.App.2d 132

Joseph M. BRENNAN and Henry W. Stepo, Plaintiffs-Appellees, v.Joseph LESHYN, d/b/a Leshyn Greenhouses, Defendant-Appellant.

Gen. No. 49247.

Appellate Court of Illinois, First District, Second Division.

July 3, 1964.

Warren J. Hickey, Chicago, for plaintiffs-appellees, Edward Wolfe, Chicago, of counsel.

Fred J. O'Connor, Chicago, for defendant-appellant, Norton Wasserman and Ronald A. Orner, Chicago, of counsel.

BRYANT, Justice.

This is an appeal from a judgment entered on a jury verdict on February 19, 1963, in the Circuit Court of Cook County in favor of plaintiff, Joseph Brennan, in the amount of $10,000.00, and in favor of plaintiff, Henry Stepo, in the amount of $4,000.00.The defendant, Leshyn Greenhouses, charges the following errors in regards to liability: (1) inadequate opportunity was given to explain a prior inconsistent statement with which defendant, Joseph Leshyn, had been impeached; (2)the court improperly refused to admit a photograph into evidence; (3) the jury was improperly instructed as to the burden of proof.Defendant also charges that the court erred in receiving evidence going to damages by ignoring the best evidence rule and by allowing hearsay statements.

Joseph Brennan and Henry Stepo were firemen injured while fighting a fire at the Leshyn Greenhouses on October 16, 1952.The immediate cause of their injury was a fall into a boiler pit approximately four feet deep, eighteen feet long and about ten feet wide.The boiler and boiler pit were located in a brick veneered building adjacent to and connected to a wooden shed which was the site of the main blaze.There was some flame at the corner of the boiler building along a wooden roof.The room was filled with smoke.There is a dispute whether there were actual flames at the end of the room at which the firemen entered.Brennan and Stepo entered the boiler room and fell into the pit at different times.

The main dispute before the lower court centered around whether there was a wooden railing surrounding the pit at the time of the fire.Physical evidence following the fire was inconclusive and the question was one of fact to be determined by the jury.

During the course of the trial defendant was called as a witness by plaintiffs under section 60(Ill.Rev.Stat. ch. 110, § 60) and admitted making a prior inconsistent statement in regards to who built the railing in existence at the time of the fire.He stated:

'In my deposition of April of 1959 I stated that Charles Anderson might have built the wooden railing around the boiler pit prior to the fire.I say today that Robert McLarney built the railing but in 1959 I thought that Charles Anderson built it.I didn't remember at that time which one of these gentleman built it * * *.It was Robert McLarney who built this railing * * *.I think my memory is better now.'

The next afternoon Mr. Leshyn's attorney called him for direct examination and began to inquire into the inconsistency again.Mr. Leshyn testified that Mr. McLarney had constructed the railing during the spring of 1951.He was then asked if after the fire the railing was replaced.The court sustained an objection to proceeding with the questioning although defendant stated he wanted to clarify the previous day's testimony.On cross-examination plaintiffs' attorney again re-emphasized the inconsistent statement on several different occasions.On redirect examination defendant stated:

'I first learned that Robert McLarney had constructed the railing in April of 1951 when we were recalling the incident while working.It was sometime yesterday when I first found out the difference in the dates when Mr. Anderson worked and Mr. McLarney worked.I found this out sometime yesterday morning.I looked through my records to see what days people were working for me.I discovered that Mr. McLarney left my employment at such and such a time, and that Anderson started to work for me such and such a time * * *.

'When I gave my deposition I didn't have the records in the office.I had them at home.They were still at home yesterday.These were the records in which I first found out that McLarney was the one who did the work.In 1959 I thought Anderson worked for me at the time, I never told my lawyer after that, that I was mistaken.'

Defendant argues that failure of the court to allow ample explanation of Mr. Leshyn's inconsistent statements during direct examination over the objection of defendant constituted reversible error.He now contends that if allowed to produce evidence he would have shown that defendant's confusion between two instances of rebuilding caused the contradiction.It is of course true that where a witness admits contradictory statements imputed to him the witness should have ample opportunity to give such reasons or explanations in exculpation of his conduct as he might have and to show the circumstances under which the contradictory statement was made.Forslund v. Chicago Transit Authority, 9 Ill.App.2d 290, 299-300, 132 N.E.2d 801(1956); Gard, Illinois Evidence Manual, Rule 489(1963);1959 Illinois Law Forum 695, 725.The defendant gave an adequate explanation of the inconsistency on redirect examination.He cannot be heard to say that he intended to say more or remark along a different line without properly preserving the objection by means of an offer of proof.Smith v. Smith, 5 Ill.App.2d 383, 389-390, 125 N.E.2d 693(1955); 3A Nichols Illinois Civil Practic§ 3424(1961).It should also be noted that we are precluded from finding error in this ruling of the court since the point was neither raised in the post-trial motion nor argued before the court in the post-trial hearing.

Defendant next argues that the court erred in refusing to admit a photograph of a railing admittedly built after the fire, which photograph would have aided the defendant in showing the existence of a railing at the time of the fire.Defendant's witness Robert Renda, who testified that he was familiar with the railing prior to the fire was not allowed to point out the differences between the railing in the photograph and that which existed prior to the fire.Mr. Renda cared for the boiler at the time of the fire and was familiar with the premises.

In order to have a photograph admitted in evidence it is necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts.The witness need not be the photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene or object in question and testify that it is correctly portrayed by the photograph.Kooyumjian v. Stevens, 10 Ill.App.2d 378, 388, 135 N.E.2d 146(1956);4 Callaghan's Illinois Evidence§ 8.65(1964); 3A Nichols Illinois Civil Practice§ 3344(1961).The admissibility of the photographs is within the discretion of the court(Pitrowski v. N. Y. C. & St. L. R. Co., 6 Ill.App.2d 495, 499, 128 N.E.2d 577(1955)) and although the photographs are not evidence themselves, they are allowed for the purpose of enabling the jury to understand and apply the testimony.Foster v. Bilbruck, 20 Ill.App.2d 173, 183, 155 N.E.2d 366(1959).Changed conditions at the time of taking, do not necessarily render the photograph inadmissible if it can be shown by testimony that after the changes are explained, the jury will be able to understand it clearly as a correct representation and not be misled by it.Terry v. City of Chicago, 320 Ill.App. 342-344, 51 N.E.2d 71(1943);Rehnbloom v. City of Berwyn, 329 Ill.App. 327, 68 N.E.2d 479(1946); Gard, Illinois Evidence manual, Rule 336(1963).

Appellees maintain that the photograph, assuming that the prior railing either did not exist or was destroyed in the fire, was a posed photograph.In Gard, Illinois Evidence Manual Rule 337, p. 407, the author comments on posed photographs:

'The posed photograph may be compared with the drawing which the witness makes in the course of his testifying, upon which he places the various objects and persons at the places he remembers them to have been at the time of the occurrence as he observed it * * *.'

In this casedefendant's photograph was taken just prior to the trial.It differed from several of plaintiffs' photographs taken just following the fire by the fact that a railing appeared in defendant's photograph.We do not believe that the railing falls into the same category as the changed conditions in the Terry and Rehnbloom cases.In this case the presence of a railing was the main fact in controversy throughout the trial.In the changed conditions cases the changes refer to collateral facts not vital to the point demonstrable by the photograph.In this case the basic pit structure was identical to the conditions present in 1952.The railing, however, although presently existing and functional, was introduced for the purpose of reconstruction of the premises at the time of the occurrence as the witnesses Renda and Leshyn remembered it.For this reason it falls more clearly into the posed photograph area.Gard(supra) advocates that the posed photograph should be readily admissible on the same basis as drawings or sketches.The Illinois cases, however, have been reticent to admit such photographs.We believe that it was within the discretion of the court in this case to exclude the photograph and that no reversible error was committed.

Defendant contends that the court improperly refused to give its instruction number 11 defining burden of proof.That instruction read:

'When I say that a party has a burden of proof on any proposition, or use expressions 'if you find,' or 'if you...