MR. PRESIDING JUSTICE MURPHY delivered the opinion of the court.
Plaintiffs appeal from a jury verdict and judgment for defendant in their action for personal injuries and property damage allegedly incurred by them as a result of an intersection collision.
On appeal, plaintiffs contend the trial court committed prejudicial error (1) in giving the jury instructions on "imputed negligence" and "right of way," and (2) in permitting the defendant's doctor to testify as to a physical examination made of the plaintiff when no timely proffer of the report had been made to the plaintiffs' attorney.
Late in the afternoon of December 30, 1961, plaintiffs (husband and wife) were in an automobile being operated by plaintiff John Lilegdon. Mrs. Estelle Lilegdon was in the front seat with her husband, and their destination was a National Tea store located at the northeast corner of 50th Avenue and 22nd Street. While plaintiffs were in the process of making a left-hand turn at that intersection, defendant's car collided with the right rear side of plaintiffs' car. Mrs. Lilegdon suffered physical injuries, and a considerable portion of the trial involved testimony by experts considering the causal relationship between the trauma suffered by Mrs. Lilegdon and subsequent surgery.
Plaintiff John Lilegdon testified that just before the occurrence they were on 22nd Street, moving in an easterly direction. When they arrived at the intersection of 50th and 22nd Street, the traffic signal for east and westbound lanes was red, so when he approached 50th Avenue he "pulled into the cutout of the highway indicating that I am going to be making a left turn from the eastbound lane on Cermak Road to 50th Avenue going north." They waited for the east and westbound traffic light, and "I proceeded and pulled slowly into the intersection ... on an angle facing northeasterly, and I stopped there at a standstill.... [T]here were three cars that were waiting to get into the National Tea lot on 50th Avenue. If I would have proceeded across the intersection, my car would be protruding into the westbound lane of Cermak Road.... [T]here were no cars proceeding in a westerly direction." He remained stopped for seven to ten seconds, and "I sort of glanced sideways, and I thought I saw lights flashing at the side of my car, and then I felt an impact hitting my car, ... the right side of my car, the rear door and the wheel portion of the rear wheel, and
Mrs. Lilegdon testified that as they approached the intersection of 22nd and 50th Avenue, they pulled into the cutoff; the light was red when they arrived there, and they waited to make their turn; when the light changed, they "inched over into the intersection," and she did not recall anything happening after that. The next thing she knew, "I know I was lying someplace, but just where it was, I couldn't say." She further testified she was taken to a hospital and related the details of her treatment and subsequent condition.
A witness for plaintiffs, Joseph Grachen, testified he saw the Lilegdon station wagon as it was waiting in the cutout to make a left-hand turn. "It was facing more towards the north than the east," and it had been coming east on 22nd Street. The other vehicle was proceeding west "5 or 10 feet on the south side of the [median] strip going west," and in the side of the street for vehicles going in an easterly direction. The vehicle that was going in a westerly direction "rammed into the right rear of the Ford station wagon," which was standing still. The speed of the westbound vehicle was about 20 to 25 miles an hour. Grachen did not identify himself to anyone at the scene and made contact with plaintiffs by telephone three or four days after the occurrence. On cross-examination, he testified that the traffic light was green for east and west traffic, and as far as he could recall, "there was no eastbound traffic at the moment of impact."
Defendant was called as an adverse witness. He was employed by the CTA as a bus driver and used 22nd
Among the witnesses called for defendant was Dr. David Petty, who had conducted a physical examination of Estelle Lilegdon. He was of the opinion that she made a complete recovery from her injuries, and that it was impossible, therefore, to have been any causal relationship between the trauma suffered and her subsequent hysterectomy. Plaintiffs objected to the testimony of Dr. Petty on the ground that they had not been furnished with a copy of the doctor's report ten days prior to trial in compliance with the rules of the Supreme Court.
Initially, we consider the contention of plaintiffs that it was error for the court to give to the jury the following instruction:
John Lilegdon testified that he was the owner of the automobile which he was driving. Mrs. Estelle Lilegdon testified that the car was owned by her and her husband, and on deposition she had testified that the automobile was "my husband's and mine" and that it was in "both" of their names. She had no driver's license and did not know how to drive the car.
From the foregoing testimony on car ownership, plaintiffs argue that the manifest weight of the evidence was that "Estelle Lilegdon had neither legal title, possession or control of the car and no legal right to possession or control of the car at the time the accident occurred," and "at most, the statements as to ownership amounted to a legal conclusion" and were not binding on the plaintiff. Harris v. Minardi, 74 Ill.App.2d 262, 220 N.E.2d 39 (1966).
Defendant argues that a fair reading of the imputed negligence instruction will reveal that the jury had the option of finding that the plaintiff, Estelle Lilegdon, was not the owner of the vehicle in which she was riding, or that the ride was not for the mutual benefit for herself and driver; that the instruction clearly required the jury to find that the ride was for the mutual benefit of Mrs. Lilegdon and her driver, as well as that she was the owner of the vehicle in question, and a reasonable inference is that the ride was for her benefit or at least for
Defendant further argues that the right or ability of Estelle Lilegdon to drive an automobile is not at issue — the sole question is whether she had, as an owner on a ride for the mutual benefit of herself and her driver, the right to control the vehicle or the manner in which the vehicle was being operated.
We consider next plaintiffs' contention that it was error to give a left turn "right of way" instruction. Plaintiffs
Defendant argues that "considering this plaintiff's admissions in his statements to the police officers (that he was in the process of making a left turn, travelling five miles per hour) as conceded in his cross-examination, a sufficient basis existed for the jury to determine that he was negligent, and that his negligence was the proximate cause of the occurrence. Certainly the jury heard the evidence, observed the demeanor of the witnesses as they testified, and were entitled to make their own decision as to what testimony was believable and what witnesses they found credible."
Plaintiffs next contend that the trial court committed prejudicial error in permitting Dr. David Petty to testify in violation of Supreme Court Rule 17-1, since a medical report prepared by him had not been furnished to plaintiffs within the time required by the rule. Plaintiffs state that an order was entered on February 23, 1966, which required plaintiff to submit to a physical examination by Dr. Petty within 20 days, or on or before March 15, 1966, and the record shows that the medical report of Dr. Petty was not furnished to plaintiffs' counsel until April 12, 1966, after the case had been assigned for trial, although the examination had been made on March 24, 1966. Plaintiffs assert that nothing in the record suggests why the report could not have been made available by April 1, 1966, or 10 days prior to trial, as the Supreme Court Rule requires. In support, plaintiffs cite Harris v. Minardi, 74 Ill.App.2d 262, where the court stated (p 268):
And on page 269:
On this point the record shows that on February 23, 1966, Judge Schultz ordered that plaintiff Estelle Lilegdon submit herself for examination by Dr. David T. Petty
It is not disputed by defendant that a copy of the written report of Dr. Petty, the examining physician, was not delivered to the attorney for the party examined ten days before trial, as required by Rule 17-1(3). The copy was delivered to plaintiffs' attorney on April 12, 1966, the day the case was assigned out for the trial, which commenced on April 13, 1966.
When defendant offered Dr. Petty as a witness, plaintiffs' counsel objected to his testimony because of noncompliance with Rule 17-1. Out of the presence of the jury, the trial court considered at length the arguments of counsel, the mandatory or discretionary character of the rule, the events preceding the trial, including the dismissal of the case and its reinstatement and return to the active trial calendar, and the element of surprise to plaintiffs. The court finally permitted Dr. Petty to testify, stating, "Incidentally, I can't help but say, although there is a claim of surprise, there has been no announcement here of any action that has been taken that prevents the plaintiff from being in a position to meet whatever the report may contain, or whatever testimony may be forthcoming."
For the reasons given, the judgment of the trial court is affirmed.
BURMAN and ADESKO, JJ., concur.