Vincent v. Wesolowski

• Decision Date: 13 October 1967
• Docket Number: Gen. No. 51788
• Citation: 232 N.E.2d 120,87 Ill.App.2d 477
• Parties: Delima VINCENT, Plaintiff-Appellant, v. Casmir W. WESOLOWSKI, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 120

232 N.E.2d 120

87 Ill.App.2d 477

Delima VINCENT, Plaintiff-Appellant, v. Casmir W. WESOLOWSKI, Defendant-Appellee.

Gen. No. 51788.

Appellate Court of Illinois, First District, Third Division.

Oct. 13, 1967.

Samuel E. & Bruce Bublick, Crowley, Sprecher, Barrett & Karaba, Robert A. Sprecher, Chicago, for appellant.

Vaccarello, Harrington & Petrucelli, Mel E. C. Perretti, Chicago, for appellee.

DEMPSEY, Justice.

In this personal injury action the plaintiff appeals from a judgment entered upon a jury finding for the defendant. The principal issues are whether: (1) certain statements in the defendant's pretrial deposition were judicial admissions which required the trial court to direct a verdict for the plaintiff or to enter judgment n.o.v. for her, (2) the verdict was against the manifest weight of the evidence, (3) the trial court erred in instructing the jury and (4) the court erred in limiting the closing argument of the plaintiff's attorney.

On June 6, 1964, the plaintiff, Delima Vincent, was riding in the rear seat of an automobile driven by her sister, Alma Mueller. The vehicle was headed north on Colfax Avenue and Mrs. Mueller intended to turn left on 95th Street. She testified that: Colfax has two lanes for northbound traffic and two for southbound; her vehicle was in the lane near the center of the street from the time she crossed 106th Street until the collision occurred; a half block from 95th Street she signaled her intention to turn; just as she came to 95th Street the traffic control light changed from red to green and she drove up closer to the middle of the intersection; she stopped to allow southbound traffic to pass and several seconds later the defendant's vehicle struck the left rear and side of her automobile. Her testimony was corroborated by the plaintiff.

The defendant's version of the accident was substantially different. He testified that: he was driving north on Colfax; the traffic light was green as he approached 95th Street; his vehicle was in the lane near the center of the street and the Mueller automobile was next to the curb and two car lengths ahead; without signaling, Mrs. Mueller made a sudden left-hand turn; he applied his brakes and swerved to the left and the right front and side of his automobile made contact with the Mueller vehicle.

The plaintiff's first contention is that five statements made by the defendant in a pretrial deposition were judicial admissions which contradicted his trial testimony and necessitated a judgment for her. The statements concerned the speed of the defendant's vehicle, the positions of the two vehicles before and after the accident and the damage to the vehicle in which the plaintiff was riding.

A judicial admission is an admission made in the course of a judicial proceeding. See Rosbottom v. Hensley, 61 Ill.App.2d 198, 209 N.E.2d 655 (1965) and Cleary, Handbook of Illinois Evidence, sections 5.1 and 17.12 (2nd ed. 1963). It is evidence against the party making it and substitutes for proof of the facts admitted. Bartolomucci v. Clarke, 60 Ill.App.2d 229, 208 N.E.2d 616 (1965). It is made by a party's deliberate testimony to a concrete fact within his peculiar knowledge; it must be a considered circumstance of the case, not a matter of speculation, inference or opinion. Gauchas v. Chicago Transit Authority, 57 Ill.App.2d 396, 206 N.E.2d 752 (1965). What constitutes a judicial admission must be decided under the circumstances of each case (Hurley v. Phillips, 54 Ill.App.2d 386, 203 N.E.2d 431 (1964)) and before a statement can be held to be such an admission it must be given a meaning consistent with the context in which it is found and must be considered in relation to the other testimony and evidence presented. McCormack v. Haan, 20 Ill.2d 75, 169 N.E.2d 239 (1960); Gauchas v. Chicago Transit Authority, supra.

The first statement said to be a judicial admission related to the speed of the defendant's automobile at the time of the collision. He testified that both cars were going about 15 to 20 miles an hour as they came to 95th Street. The alleged admission followed this series of questions and answers in his pretrial deposition:

Plaintiff's attorney: 'How fast was your car moving at the time of the impact?

Defendant: 'That is hard to tell.

Plaintiff's attorney: 'Well, what would be your best estimate as to your speed at the time of the impact?

Defendant's attorney: 'If you can estimate?

Defendant: 'Well, we had the green light, I had the right of way to go straight through, there was nothing in my way.

Plaintiff's attorney: 'How fast were you going?

Defendant's attorney: 'Twenty-five miles an hour, about.

Plaintiff's attorney: 'At the time that the impact took place?

Defendant: 'Yes.

Plaintiff's attorney: 'Twenty-five miles an hour?

Defendant: 'Thirty miles an hour.'

The defendant's first two responses did not specify how fast he was going, and it was only at the insistence of the plaintiff's attorney that he estimated his speed. Having been asked to estimate his speed, he did not purport to speak with certitude, and his answer cannot be deemed to be a binding admission.

The second statement concerned the position of the two vehicles prior to the crash. In his deposition the defendant, in response to the question whether he saw the Mueller automobile at any time before the impact, said:

'I noticed * * * (Mrs. Mueller's automobile) on 100th Street, and I was on the curb side going north, she was on the inside, like you say, the yellow line, the inside.'

At the trial he testified that when he first saw the Mueller vehicle it was in the lane next to the curb and his automobile was in the inside northbound lane. These two statements are not necessarily inconsistent. They become contradictory only if it is assumed that the deposition statement and the trial statement both described the first time the defendant saw the vehicle in which the plaintiff was riding. There is no basis in the record for making this assumption. Moreover, the defendant testified that Mrs. Mueller was cutting in and out as she proceeded northward.

At the trial the defendant further testified that his vehicle was in the center lane and the Mueller vehicle was in the curb lane at the time of the collision. This testimony is different from the deposition statement; but since the statement in the deposition referred to the position of the vehicles five blocks from the site of the accident, it cannot be considered an admission of facts material to the defense. Hence, it cannot be a judicial admission which, by itself, barred the defense.

The third statement was in reference to the direction his car was facing at the moment of the impact. In his deposition he stated that it was facing north; at the trial he stated that it was 'partly northwest.' According to the testimony the defendant was driving north and just before the accident turned to the left, so he was facing somewhat west of north at the time of the collision. His statement at the deposition and his statement at the trial were not materially discrepant and the former was not a conclusive bar to his defense.

In the next statement claimed to be a judicial admission the defendant described the position of the Mueller vehicle at the time of the collision. This statement did not involve a fact peculiarly within the defendant's own knowledge. It was not a judicial admission. Tennes v. Tennes, 320 Ill.App. 19, 50 N.E.2d 132 (1943).

In the last of the pretrial statements which the plaintiff submits as judicial admissions, the defendant said that he did not notice any damage to the Mueller auto. At the trial he stated that the right front of his car made contact with Mrs. Mueller's auto and that her damage 'was on the left side only, I believe there was the headlight--the taillight, I mean.' Upon cross-examination he stated he 'didn't see any damage, * * * didn't notice any damage on the car, only the taillight was broken on there.' The apparent inconsistency in his deposition and trial statements was due to his restricted use of the word 'damage'; he apparently did not think that a broken taillight, in comparison to the $350.00 repair bill for his own car, was serious enough to be called damage. His equivocal deposition statement cannot be elevated to the statute of a judicial admission.

Since none of these statements rendered ineffectual the defense presented at the trial, the motion...