Matuk v. Harper, 12519.

• Decision Date: 17 June 1959
• Docket Number: No. 12519.,12519.
• Citation: 267 F.2d 530
• Parties: Joaquin MATUK, Jessie Matuk and Mary Jo Fox, Plaintiffs-Appellees, v. Russell HARPER, Defendant-Appellant. Russell HARPER, Counter-Plaintiff-Appellant, v. Jessie MATUK, Counter-Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

267 F.2d 530 (1959)

Joaquin MATUK, Jessie Matuk and Mary Jo Fox, Plaintiffs-Appellees, v. Russell HARPER, Defendant-Appellant.

Russell HARPER, Counter-Plaintiff-Appellant, v. Jessie MATUK, Counter-Defendant-Appellee.

No. 12519.

United States Court of Appeals Seventh Circuit.

June 17, 1959.

Philip E. Ryan, Chicago, Ill., for appellant.

Prentice H. Marshall, Chicago, Ill., for appellees.

Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.

DUFFY, Chief Judge.

This suit is to recover damages for personal injuries and property damage arising out of a head-on collision between two automobiles, one driven by the plaintiff Jessie Matuk, and the other by the defendant Russell Harper. Jurisdiction is based upon diversity of citizenship. The jury returned verdicts in favor of the plaintiffs and judgments were entered accordingly.

At about 11:30 p. m. on January 21, 1957, plaintiff, Jessie Matuk, was driving a Lincoln automobile owned by his brother, Joaquin Matuk, in a northerly direction on Torrence Avenue, in Cook County, Illinois. He was accompanied by his fiancee, plaintiff Mary Jo Fox, who was sitting in the front seat beside him. At the point in question, Torrence Avenue is a blacktop two-lane highway about twenty feet wide with comparatively narrow shoulders on either side. In the immediate area there was open country with no artificial lighting along the highway. The surface of the road was wet from an earlier rainfall, but at the time of the collision the visibility was good.

Jessie Matuk noticed the headlights of an on-coming automobile when it was 400-500 feet distant. This automobile swerved from the southbound lane to the northbound lane. Matuk then drove his car onto the right shoulder of the highway. Miss Fox called out a warning: "Jessie, watch him." Matuk then turned his automobile to the left and onto the pavement. The approaching automobile likewise swerved toward the pavement. In a last minute effort to avoid the collision, Matuk turned to his right, and the impact of the automobiles then occurred. Both Jessie Matuk and Mary Jo Fox received serious injuries.

Two passersby who happened upon the scene were witnesses at the trial. Each witness testified that he smelled liquor on defendant Harper's breath, and one stated that, in his opinion, Harper was under the influence of alcohol.

Officer Munizzi was the only non-medical witness called by defendant. He testified he investigated the collision. His testimony was based upon his recollection as refreshed by reports made at the time of the investigation. At the outset of Officer Munizzi's direct examination, defendant's counsel showed him an exhibit which was a police report prepared by Munizzi, and directed him to look it over for the purpose of refreshing his recollection. The officer testified: "I would have to see the report to remember."

Defendant does not raise any question as to the sufficiency of the evidence to support the finding of liability, and he does not challenge the amount of the damages awarded to plaintiffs. His principal claim of error is that the invitation of the Court to place the police report in evidence, and the offer of plai...