concluding that proffered evidence was proper rebuttal and noting that “the present case is not one in which the plaintiff has purposely elected to save his best witness for rebuttal”
How later courts described this case
- concluding that proffered evidence was proper rebuttal and noting that “the present case is not one in which the plaintiff has purposely elected to save his best witness for rebuttal”
- holding that the Dead-Man’s Act does not provide an exception when the representative merely introduces notes of a conversation
Written by the judges who cited it.
The opinion
JUSTICE COOK, specially concurring:
I concur in the majority opinion except for its resolution of the Dead Man’s Act issue.
Plaintiff’s decedent had a conversation with Dr. Zia on October 31, 1988. Dr. Zia made notes of that conversation, and plaintiff introduced those notes at trial. Introduction of the notes constituted testimony “on behalf of the representative to [the] conversation with the deceased,” as set out in the first exception to the Act (Ill. Rev. Stat. 1989, ch. 110, par. 8—201(a)), and the trial court then properly allowed Dr. Zia to testify to that conversation. Introduction of the notes is not much different from plaintiff’s introduction of a deposition of Dr. Zia discussing the conversation, which would clearly waive the protection of the Act. (Pink v. Dempsey (1953), 350 Ill. App. 405 , 113 N.E.2d 334 ; see also Ill. Rev. Stat. 1989, ch. 110, par. 8—201(b) (admission of decedent’s deposition waives protection of Act).) The majority’s overly technical argument that “an exhibit is not testimony” (239 Ill. App. 3d at 613) is refuted by the Act’s third exception, that “[a]ny testimony competent under Section 8—401 of this Act, is not barred by this Section.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 8—201(c).) Section 8—401 of the Act allows the admission into evidence of “a book, record, or document of original entries.” (Ill. Rev. Stat. 1989, ch. 110, par. 8—401.) Exhibits are testimony as that language is used in the Act.
The underlying basis for the majority opinion on this point may be the belief that Dr. Zia’s trial testimony, so much at odds with his medical notes, is untruthful. Even if that were the case, the jury can adequately determine credibility by comparing the notes to the testimony. This is not a situation where an adverse party testifies to a conversation with a decedent about which the representative knows nothing. This is a situation where decedent’s representative has evidence of the conversation and seeks to use that evidence. The policy of the Act is “not to disadvantage the living but rather to put the parties on an equal footing.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §606.6, at 326 (5th ed. 1990).