387 F.2d 723 (7th Cir. 1967), 16013, Gudgel v. Southern Shippers, Inc.

Docket Nº:16013.
Citation:387 F.2d 723
Party Name:John T. GUDGEL, Plaintiff-Appellant, v. SOUTHERN SHIPPERS, INC., Defendant-Appellee.
Case Date:October 26, 1967
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 723

387 F.2d 723 (7th Cir. 1967)

John T. GUDGEL, Plaintiff-Appellant,

v.

SOUTHERN SHIPPERS, INC., Defendant-Appellee.

No. 16013.

United States Court of Appeals, Seventh Circuit.

October 26, 1967

Page 724

Mort A. Segall, Champaign, Ill., for appellant.

Charles R. Young, Graham, Meyer, Young, Welsch & Maton, Danville, Ill., for appellee.

Before HASTINGS, Chief Judge, and DUFFY, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

HASTINGS, Chief Judge.

This case arises out of a collision between a car driven by plaintiff-appellant John Gudgel, a citizen of Indiana, and a truck tractor driven by defendant Bud Freischlag, a citizen of Illinois, at an intersection in Danville, Illinois, on June 30, 1963.

Defendants in addition to Freischlag are Southern Shippers, Inc., a Mississippi corporation and common carrier which had leased the tractor for a period of one year on November 8, 1962; Gene Moffett, an Illinois citizen whose name appears as owner-lessor on the lease agreement covering the tractor; Cecil Shockley, an Illinois citizen who had apparently purchased the tractor from

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Moffett prior to the collision and regularly drove the tractor; and Wally Fondaw, a Mississippi citizen who is president of Southern Shippers.

Appellant's complaint alleges that Freischlag negligently ran a stop light, thereby causing the collision and injuring plaintiff in his person and property. The case was tried to a jury.

At the close of plaintiff's case the trial court granted motions dismissing defendants Moffett and Fondaw from the defendants and Fondaw from the case and denied defendant Southern Shippers' motion to dismiss. Southern Shippers moved for a directed verdict at the close of defendants' case, and the court denied its motion. The jury returned a general verdict against defendants Freischlag and Southern Shippers.

In answer to special interrogatories, the jury found that Southern Shippers did not own the tractor involved in the collision, that Freischlag was in the employ of Southern Shippers on the date of the collision, and that Freischlag was acting within the scope of his employment as agent of Southern Shippers at the time of the collision.

Southern Shippers moved for judgment notwithstanding the verdict on various grounds, including the absence of evidence to support the finding that Southern Shippers was liable for Freischlag's negligence. The trial court granted the motion.

Plaintiff appeals from the trial court's order granting Southern Shippers' motion for judgment notwithstanding the verdict. The jury's finding that Freischlag was negligent and that his negligence proximately caused injury to plaintiff is therefore not at issue. The sole issue is whether the trial court erred in setting aside the jury's verdict against...

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