Smith v. Williams

34 Ill. App. 3d 677, 339 N.E.2d 10 (1975)



Rule 1: Under Ill. Sup. Ct. R. 236, Ill. Rev. Stat. ch. 110A, para. 236, it is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible. The rule is designed to permit the admission of business memoranda which impart a circumstantial guarantee of trustworthiness. Under rule 236, once the custodian of the records has testified as to the manner in which the records were kept, that they were kept in the regular course of business, and that it was part of the business to keep such records, the function of the custodian at the trial is completed. The records themselves should be introduced rather than the custodian giving his summation of them. Furthermore, items (such as notes from a doctor) which are kept in a business file, but which were not made by the business entity to which the file belongs, are not part of a business record for the purpose of admission under the business records rule, for the rule applies to entries made by the business, not to items merely retained in its file. 

Rule 2: It is the law in Illinois that a verdict should be set aside and a new trial granted for inadequacy of damages where it is clear that injustice has been done, or where it is obvious that a jury failed to take into consideration proper elements of damage which are clearly proven, or where it is apparent that the jury made a compromise between the guilt of the defendant and the damages sustained by a plaintiff.


There was a collision between automobiles driven by appellant injured driver and appellee tortfeasor. Appellee admitted liability and the sole issue presented to the trial court was the extent of appellant’s injuries. The jury awarded appellant $ 100. The appellate court affirmed the judgment of the trial court and the amount of damages awarded by the jury.


Issue One: Did the trial court err when it permitted certain witnesses to read from records not admitted in evidence?

Issue two: Was the verdict, upon which the judgment was entered, against the manifest weight of the evidence?


1. No.; 2. No.


Conclusion one: The testimony in question did not fit within either the memory refreshed, past recollection recorded, or business records exceptions to the hearsay rule. Even though the testimony was hearsay that was not within any exception to the hearsay rule, appellant never objected to the testimony at trial. Thus, the trial court had no objection before it upon which it could have excluded the hearsay evidence.

Conclusion two: Appellant injured driver’s testimony regarding her injuries and treatment as a result of the accident was sharply contradicted by appellee tortfeasor's evidence and appellant was impeached several times on her testimony material to the issue of her injuries and condition. The jury chose to disbelieve appellant’s evidence in regard to the nature and extent of her injuries and the purposes for which treatment was administered to her. Such jury disbelief was supported by the record and the $ 100 verdict represented just compensation to appellant for her damages and injuries stemming from the collision.

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