Stimpert v. Abdnour
| Decision Date | 19 April 1961 |
| Docket Number | Gen. No. 11491 |
| Parties | Herbert STIMPERT, Administrator of the Estate of Rodney Gayle Stimpert, Deceased, Plaintiff-Appellant, v. Richard ABDNOUR, Jr., and Richard Abdnour, Sr., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Kevin D. Kelly, LaSalle, McNeilly & Olivero, Peru, for appellant.
Zwanzig, Thompson & Lanuti, Ottawa, for appellees.
Plaintiff-appellant appeals from a judgment of the circuit court of LaSalle County finding him in contempt of court, and imposing a $100 fine for refusing to comply with an order of the court requiring him to furnish to defendants-appellees a copy of a statement taken from the minor defendant, Richard Abdnour, Jr., by the plaintiff and his attorney a few days after the inquest and prior to the filing of the suit. By subjecting himself to contempt proceedings, the plaintiff has employed an appropriate method to test the validity of the pre-trial order to produce the document in question. Kemeny v. Skorch, 22 Ill.App.2d 160, 159 N.E.2d 489.
Plaintiff's intestate, his minor son, lost his life while riding as a guest passenger in a 1953 Ford owned by the defendant Richard Abdnour, Sr. and driven by the minor defendant, Richard Abdnour, Jr. One week after the inquest, where young Abdnour declined to testify on advice of counsel, plaintiff and his attorney went to the High School where the decedent and young Abdnour had been close friends and students together, and took a question and answer statement from young Abdnour in the presence of a court reporter. Abdnour was questioned about the mechanical condition of his car and the recklessness and incompetency of his driving at the time of the accident. It is this statement which the plaintiff refused to produce on the order of the trial court. While we do not have the statement before us, it would seem from the complaint that the allegations of wilful and wanton misconduct on the part of young Abdnour, and the negligence of the senior Abdnour, are grounded in whole or in part from the information obtained during the taking of the statement. Among other things the complaint charges speeding, zig-zagging across the center line, defective brakes, defective mechanical condition and a defective front wheel. The questions and answers were later transcribed and are in the possession of plaintiff's lawyer.
The record further shows that the plaintiff attended the inquest and presumably heard what transpired there; that both boys were minors; that they had ridden together frequently; that neither the plaintiff nor any members of his family had talked with young Abdnour prior to the statement; and that the statements of young Abdnour in the document are at variance with his pre-trial deposition subsequently taken. In answer to interrogatories plaintiff readily admitted the taking of the statement and in open court offered to produce it for the court's examination on condition that it be neither shown to nor discussed with defense counsel. When ordered to produce the document for examination by defense counsel, plaintiff declined on the grounds that the document was exempt from pre-trial discovery under Supreme Court Rule 19-5(1), Par. 101.19-5(1), Chapt. 110, Ill.Rev.Stat.1959, as a document prepared by or for a party in preparation for trial, and for the further reason that it was the work product of his attorney and was, for that reason, exempt. The finding of contempt, imposition of the fine and this appeal followed in due course.
The record leaves no doubt that the statement and its contents possess the relevancy and the materiality to the issues in the case to qualify it for pre-trial discovery procedure. The specific acts of negligence cahrged in the complaint against the defendant son and the defendant father, are in the evidentiary areas admitted by the plaintiff to have been covered in the statement. It is further stated by the plaintiff that the statement is at variance in these same areas with the defendant's pre-trial deposition subsequently taken. Without benefit of the statement before us, we cannot, with any degree of precision, determine whether its suitability for the plaintiff on the trial will be, as (a) an admission against interest in plaintiff's case in chief, (b) for the purpose of refreshing his recollection if he is called under Section 60 of the Civil Practice Act as an adverse witness, or (c) for impeachment should it develop on the trial that he may be properly called as a witness in his own behalf. Under any of these circumstances it would appear to have the relevancy and the materiality in the case which lends it subject to pre-trial discovery procedure. Plaintiff contends that it is insulated agaisnt such procedure for the reasons previously stated. The burden is on the party seeking that insulation, to establish its existence. Krupp v. Chicago Transit Authority, 8 Ill.2d 37, 132 N.E.2d 532; Haskell v. Siegmund, 28 Ill.App.2d 1, 170 N.E.2d 393.
The various facets and the history of the problem have been recently fully discussed in Kemeny and Haskell, above cited, and we refer to them for developmental background. The cases cited in the briefs are fully discussed in those opinions and undue repetition is deemed unnecessary here. The particular clause of Rule 19-5(1), with which they dealt and with which we here deal, reads as follows:
'Disclosure of memoranda, reports or documents made by or for a party in preparation for trial * * * shall not be required through any discovery procedure.'
Such clause is frequently confused with the so-called 'work-product' of the attorney, as if they were synonymous and encompass the same area. Such is not the case. Decuments, reports and records may be entitled to statutory insulation against discovery even though prepared by other than members of the bar, so long as they are prepared by or for a prty in preparation for trial. See Kemeny, above. Conversely, even though prepared by an attorney in preparation for trial, they may not, under all circumstances, by insulated against disclosure. In McGill v. Illinois Power Co., 18 Ill.2d 242, 163 N.E.2d 454, 457, the plaintiff had taken the depositions of two witnesses in preparation for the prosecution of a claim under the Workmen's compensation Act and before the principal suit was filed. These same two witnesses were co-defendants with the power company, in the principal suit. The corporate defendant demanded the pre-trial production of the depositions. The trial court refused to require it. In the Supreme Court the plaintiff took the same position and made the same contentions that the plaintiff does here. The Supreme Court disposed of both contentions in the following language:
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