Carter v. Williams

• Decision Date: 26 May 1966
• Docket Number: 15052.,No. 14814,14814
• Citation: 361 F.2d 189
• Parties: Cary H. CARTER, Plaintiff-Appellant, v. Lillian Mae WILLIAMS, Defendant, and Vernon Solberg, William D. Terrill, Emily B. Stovall, James Harrison and William Rabideau, Defendants-Appellees. Lillian Mae WILLIAMS, Defendant-Appellant, v. Cary H. CARTER, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

361 F.2d 189 (1966)

Cary H. CARTER, Plaintiff-Appellant, v. Lillian Mae WILLIAMS, Defendant, and Vernon Solberg, William D. Terrill, Emily B. Stovall, James Harrison and William Rabideau, Defendants-Appellees.

Lillian Mae WILLIAMS, Defendant-Appellant, v. Cary H. CARTER, Plaintiff-Appellee.

Nos. 14814, 15052.

United States Court of Appeals Seventh Circuit.

May 26, 1966.

James A. Dooley, William J. Jovan, Chicago, Ill., for Carter.

David E. Jacker, John M. O'Connor, Jr., Stewart S. Dixon, of Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., for Terrill.

John E. Wilson, Chicago, Ill., for Harrison.

Anton J. Valukas, James P. Chapman, Chicago, Ill., for Stovall.

John M. Beverly, Frank J. Pause, Robert O. Duffy of Beverly and Pause, Chicago, Ill., for Rabideau.

Donald W. Ford, James M. Redding, Chicago, Ill., for Salbert and Williams.

Before HASTINGS, Chief Judge, and SCHNACKENBERG¹ and KILEY, Circuit Judges.

HASTINGS, Chief Judge.

These consolidated appeals (Nos. 14814 and 15052) arise from the judgments of the district court in an action by Cary H. Carter, an Ohio resident, against several Illinois residents² to recover damages for personal injuries incurred in a highway collision. In No. 14814, Carter appeals from the entry of a summary judgment in favor of all defendants, except Lillian Mae Williams. In No. 15052, Williams appeals from a default judgment entered in favor of Carter.

In 1956, Carter was district sales manager for M-R-C Bearing Service Company, headquartered in Cincinnati, Ohio. James Harrison, a resident of Peoria, Illinois, was a company salesman. Harrison intended to resign, and Carter traveled by train from Cincinnati to Chicago, Illinois to learn from Harrison the reason for his resignation. After a meeting with Harrison, at which Carter agreed to Harrison's immediate resignation, Harrison invited Carter, who was to return to Cincinnati by train, to ride with him in his car to Kankakee, Illinois, where Carter could catch his train. Carter accepted.

Going south en route to Kankakee, Harrison allegedly drove carelessly, ran a red light and speeded. Carter allegedly protested this conduct.

On a level stretch of two-lane highway near Peotone, Illinois, Harrison, unable to stop in time to avoid a collision, struck from the rear a car driven by Mrs. Emily B. Stovall. Stovall had stopped suddenly to avoid an accident which had occurred directly ahead of her. The car ahead of Stovall, driven by William Rabideau, had been struck by a car driven by William D. Terrill. The Terrill car was originally in the northbound lane of traffic, but had suddenly veered over the center line and struck Rabideau's southbound car.

The Terrill-Rabideau collision allegedly occurred after Terrill's car had been struck in the rear by a car owned by Vernon Solberg and driven by Williams. Williams, who had not driven the car before and was unfamiliar with it, had apparently become unnerved and uncertain after an unsuccessful attempt to pass the Terrill car. Attempting to return to her proper lane of traffic, she allegedly struck the rear of Terrill's car, causing it to veer sharply into the lane of oncoming traffic.

The following diagram will clarify the facts surrounding the accident.

As stated, the car Williams was driving was owned by Vernon Solberg. He had met Williams that afternoon. He had taken her shopping in Kankakee, and they had had some beers. It was on their return trip from Kankakee, and after Solberg allowed Williams to drive his car, that the accident occurred.

The complaint in the instant case was filed in 1958. Because Williams could not be located, summons was served on her by means of substituted service of process on the Illinois Secretary of State.

Depositions were taken in 1960 and 1961 from Carter and from all defendants, except Williams. After a number of postponements, the case was called for trial on May 27, 1964. A jury was impaneled and witnesses heard, but a mistrial was declared. Defendants, with the exception of Williams, who was not present, moved for summary judgment. The motions for summary judgment were generally supported by the depositions taken in 1960 and 1961. Carter filed an affidavit in opposition. In order to consider the motions, the court continued the cause to June 9, 1964.

On that day, the trial court entered summary judgments in favor of all defendants, except Williams, on the ground that the negligence of Harrison was imputed to Carter and that this barred Carter's recovery against all defendants. An order of default was entered against Williams, nunc pro tunc, as of May 27, 1964. A later prove-up was conducted, and default judgment was entered against Williams in the amount of $29,187.83.

In entering summary judgments for the defendants, the trial court found that the purpose of the Harrison and Carter trip was to take Carter from Chicago to the railroad station in Kankakee in connection with company business and that Carter and Harrison understood and agreed that the company would reimburse Harrison for driving expenses. It also found that at the time of the accident Harrison was operating his car at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the way, contrary to and in violation of Illinois law, and that as a result of Harrison's acts, his automobile collided with another vehicle, thereby causing Carter's injury.

The court drew the following conclusions of law:

"First, that in Illinois it is negligence as a matter of law to drive an automobile at such a rate of speed that it cannot be stopped in time to avoid collision with an object discernible within the driver\'s length of vision ahead of him. * * *

"Second, that Harrison\'s violation of Chapter 95½, paragraph 146, Ill.Revised Statutes, which was adopted for the public safety, constitutes negligence per se as a matter of law. * *

"Third, that Carter, at the time of the occurrence upon which this action is based, was engaged in a joint enterprise with Harrison, or in the alternative, that there was an agency relationship existing at the time between Harrison and Carter. * * *

"Fourth, that under these circumstances the negligence of Harrison is imputed to Carter to bar recovery on his part against all defendants."

Carter has appealed on the ground that there was a genuine issue of material fact as to whose negligence had been the proximate cause of his injuries; that the trial court erred in finding Harrison guilty of negligence as a matter of law; that the trial court erred in holding as a matter of law that Harrison and Carter were engaged in a joint enterprise; that the trial court erred in permitting the doctrine of imputed negligence to apply between Harrison and Carter; and, finally, that the trial court erred in failing to submit Carter's complaint charges of willful and wanton negligence against Harrison to a jury.

SUMMARY JUDGMENT

While it is clear that summary judgment is appropriate where no genuine issues of material fact exist, Federal Rules of Civil Procedure, 56(c), 28 U.S. C.A.,³ there is a question whether allegations of negligence in a pleading, without more, create, in the face of opposing deposition testimony showing that there was no negligence, such a material issue of fact as to make summary judgment appropriate.

The law in this circuit is expressed in Moutoux v. Gulling Auto Electric, Inc., 7 Cir., 295 F.2d 573, 576 (1961):

"While Rule 56 does contemplate that `the allegations of fact in the pleadings may be pierced\' by admissions, depositions and affidavits which show, in fact, that no genuine issues of fact exist. Albert Dickinson Co. v. Mellos Peanut Co., 7 Cir., 179 F.2d 265, 267, unless such evidentiary matters submitted in a particular case clearly show `that there was no issue of fact to be tried\', the court `is not permitted to try on the affidavits submitted an issue of fact which is presented by the pleadings.\' Campana Corp. v. Harrison, 7 Cir., 135 F.2d 334, 335-336. If, upon the proofs adduced in support of a motion for summary judgment, any doubt remains as to the existence of a genuine issue of material fact, such doubt must be resolved against the movant for summary judgment and the motion for summary judgment must be denied. Mitchell v. Pilgrim Holiness Church Corp., 7 Cir., 210 F.2d 879, certiorari denied 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136 * * *."

To Harrison's motion for summary judgment based on joint enterprise or an agency relationship between Harrison and Carter and on imputed negligence, Carter filed an opposing affidavit. While Harrison in his deposition stated that his resignation was effective as of August 31, Carter in his affidavit implied that Harrison's resignation was effective on August 23, the day of the accident; that prior to their departure, Harrison turned in his salesman's equipment; that Harrison volunteered to take him to Kankakee; and that between the time he and Harrison left Chicago and the time of the accident, no business was transacted.

These diverse statements generate a material factual issue with regard to Harrison's employment status at the time of the accident. While the questions whether Carter and Harrison were engaged in a joint enterprise or, alternatively, that an agency relationship existed between them are ultimately questions of law, they are questions which call for an exact appraisal and determination of the facts. Harrison's ambiguous status must be determined before, and not after, the application of a legal characterization.

While the district court in granting the motion for summary judgment no doubt resolved the case to defendant Harrison's satisfaction, notwithstanding the finding of negligence on Harrison's part, Harrison's deposition testimony on the question of negligence is in conflict with that of Carter. According to Harrison, he did not run a stop light, was not speeding, and Carter did not protest his manner of...