Ewald v. Pielet Scrap Iron & Metal Co.

• Decision Date: 15 May 1941
• Docket Number: Gen. No. 41604.
• Citation: 310 Ill.App. 218,33 N.E.2d 930
• Court: United States Appellate Court of Illinois
• Parties: EWALD v. PIELET SCRAP IRON & METAL CO. ET AL.

310 Ill.App. 218

33 N.E.2d 930

EWALD

v.PIELET SCRAP IRON & METAL CO. ET AL.

Gen. No. 41604.

Appellate Court of Illinois, First District, Third Division.

April 23, 1941.

Rehearing Denied May 15, 1941.

Appeal from Circuit Court, Cook County; Daniel P. Trude, Judge.

Action by Frank Ewald against the Pielet Scrap Iron & Metal Company, Frank Kowla, and others for assault and battery. Judgment for plaintiff, and defendants other than defendant Kowla appeal.

Reversed and remanded. Lord, Bissell & Kadyk, of Chicago, for appellants.

Alfred M. Loeser and Harold Z. Novak, both of Chicago, for appellee.

DENIS E. SULLIVAN, Justice.

Defendants herein, with the exception of Frank Kowla, bring this appeal from a judgment for $4,000 entered in favor of plaintiff for damages alleged to have been sustained because of an assault and battery committed on plaintiff by defendants' watchman, Frank Kowla, acting within the scope of his authority. The cause was tried before a judge and jury, resulting in a verdict for $5,800, upon which the trial judge requested that a remittitur of $1,800 be made and entered judgment for $4,000 as aforesaid.

Plaintiff's theory of the case is that he was assaulted by defendants' watchman acting in the course of his employment, and that as a result of the assault he sustained serious injuries.

Defendants' theory of the case is that plaintiff sustained only superficial injuries as a result of the encounter and the damages awarded are grossly excessive; that defendants were deprived of a fair trial by the repeated prejudicial misconduct of plaintiff's counsel and by the admission of irrelevant and prejudicial evidence offered by the plaintiff; that plaintiff should not have been permitted to give his opinion that he had fully recuperated from a prior accident; that the hypothetical question propounded by plaintiff was improper because it omitted material facts and included other facts not in evidence and should have been stricken; that the individual defendants are in no event liable because the watchman was not their employee.

The evidence in this case shows that some of the defendants are engaged in maintaining a junk yard either in their own names or in the name of the corporation as herein set forth; that the junk yard is located at 2641 South Whipple Street, Chicago, Illinois.

The evidence further shows that one Frank Kowla was acting as a watchman for the defendants or some of them; that on May 29, 1938, plaintiff while walking on the sidewalk in a northerly direction on the east side of Whipple street, as he neared defendants' junk yard, he heard a voice calling to him to come into the junk yard; that plaintiff looked and saw a fellow whom he knew by sight, but whom he does not identify, and that person motioned for plaintiff to come into the yard; that plaintiff walked into the junk yard and when he had proceeded some 30 or 35 feet, he heard someone “cuss” and mumble behind him; that as he turned to see who it was, he heard a shot and at the same time was hit on the head and he fell backwards; that plaintiff was hit on the head with the butt end of a revolver which knocked him unconscious; that plaintiff was severely injured and was taken to a hospital; that according to the testimony of the doctor who examined him shortly thereafter, plaintiff received a head concussion; that he had trouble with his left arm and leg and his eyes bothered him and there was a blurring...