Fontanne v. Federal Paper Bd. Co., Inc.

• Decision Date: 25 March 1982
• Docket Number: No. 81-731,81-731
• Citation: 61 Ill.Dec. 178,105 Ill.App.3d 306,434 N.E.2d 331
• Parties: , 61 Ill.Dec. 178 Lance E. FONTANNE, Administrator of the Estate of Kathy G. Fontanne, Deceased, Plaintiff-Appellee, v. FEDERAL PAPER BOARD COMPANY, INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 331

434 N.E.2d 331

105 Ill.App.3d 306, 61 Ill.Dec. 178

Lance E. FONTANNE, Administrator of the Estate of Kathy G Fontanne, Deceased, Plaintiff-Appellee, v. FEDERAL PAPER BOARD COMPANY, INC., a corporation, Defendant-Appellant.

No. 81-731.

Appellate Court of Illinois, First District, Fourth Division.

March 25, 1982.

Rehearing Denied April 26, 1982.

John C. Doyle, Joseph J. McDonough, Kralovec, Marquard, Doyle & Gibbons, Chartered Chicago, for defendant-appellant.

Mullen, Clancy & Associates, Katz, Friedman, Schur & Eagle, Chtd., Chicago (Thomas A. Clancy, Chicago, of counsel), for plaintiff-appellee.

ROMITI, Justice:

The plaintiff as administrator of his wife's estate recovered from the defendant after the tractor-trailer loaded by defendant and driven by plaintiff and his wife overturned, killing her. Defendant appeals contending:

(1) the deceased was guilty of contributory negligence as a matter of law because federal regulations put the duty on the driver to be sure the cargo was properly distributed and adequately secured;

(2) the trial court erred in instructing the jury on recovery under the Wrongful Death Act (Ill.Rev.Stat.1975, ch. 70, par. 2), because the husband was gainfully employed;

(3) the court erred in allowing a high school dropout to testify as an accident reconstruction expert although he has been an accident reconstruction expert for over 18 years and had testified in over three thousand cases;

(4) the trial court erred in allowing that witness to testify as to the length of marks in the roadway as determined by him from photographs in evidence;

(5) the trial court erred in refusing to strike the testimony of plaintiff's economist relative to the number of hours expended in a given day, week or month by a typical housewife working outside the home and the dollar value of said service since deceased was no ordinary working housewife;

(6) the trial court erred in allowing an eyewitness to the accident to testify that in response to plaintiff's statement that he did not know how the accident had happened, the witness had told the plaintiff "it shifted";

(7) the trial judge after the jury had been deliberating over seven hours erred:

(a) in not giving a Prim instruction although the jury said they believed they were close to a verdict;

(b) in telling the jury he would give it "another twenty minutes or so," there being no objection to this statement;

(c) in allowing the jury to report, voluntarily, that it had resolved liability but needed more time to discuss damages;

(d) in extending the time for deliberation after this communication, although this extension was not communicated to the jury;

(e) in not declaring a mistrial when the privacy of the jury's deliberations were breached by communication to the court of the status of those deliberations.

We find that the case was fairly and properly tried and that no error existed, or if there was any error in the admission of testimony, such was not prejudicial error.

While defendant has contended that the case should not have gone to the jury, it does not contend that the verdict is against the manifest weight of the evidence. Accordingly, neither a detailed nor a comprehensive discussion of the occurrence testimony is required. The plaintiff, Lance Fontanne, was born on May 22, 1949; the deceased, Kathy Fontanne, was born on July 24, 1951. They were married on July 24, 1971. When they were first married, she worked as a secretary for J & M Electronics. Afterwards she worked for the International Brotherhood of Electricians. She was a high school graduate and had also taken a course in accounting.

In 1975 they became interested in becoming partners as a truck driving team. They entered into a lease agreement for the purchase of a tractor. They were to receive title to the tractor around October, 1977. They began driving in May, 1975 and averaged 14,000 miles a month. He was paid 10cents a mile and she was paid 6cents a mile for every mile the truck was driven regardless of which one was doing the driving.

After Kathy became a truck driver with her husband, she spent 28 or 29 days on the road. Even then, she took care of the lawn most of the time and did everything in the house such as cleaning and washing, preparing meals, and cutting plaintiff's hair. She handled the family finances. She also sewed most of her own clothes. She was very thrifty and probably spent only $25 a week on herself and her personal needs; she wanted to put as much as she could in the bank. They had joint checking and savings accounts; she also had a savings account in her own name. They were purchasing a house under a mortgage.

On March 2, 1976 they went to defendant's plant in Richmond, Virginia to pick up a load of paper products bound for Denver, Colorado. Defendant is a manufacturer of paperboard products. They had to wait about 11/2 hours before pulling into a dock area. Once a dock area was open, plaintiff backed the tractor into the dock, went up on the dock and told them he was picking up the load for Denver. He was immediately instructed to go to another office about three hundred feet away to take care of the paper work. That office was not visible from the dock. Plaintiff and deceased went to that office where they made certain necessary telephone calls in connection with the shipment and completed the paperwork.

Robert McCrone, the dock supervisor, testified by evidence deposition that it took between one and two hours to load the truck. The paper products rested on skids that each weighed close to one ton. They were anywhere from 34 to 36 inches in width and 48 to 60 inches in length. They were 50 inches high. There were 17 skids in the load. Although the truck could legally carry about 44,000 pounds, the total weight of this load was 36,000. While several witnesses described the placement of the skids in the truck it is unclear just how they were placed since the witnesses generally referred to photographs of the skids and diagrams which were introduced into evidence; none of these were part of the record on appeal. It does seem clear that the last skid went across the rear of the truck from the left side to the right side. McCrone admitted that the skids were not nailed or connected to the floor or sides of the truck and no boards were used in the empty spaces.

When plaintiff got back to the truck they were just putting the last skid in. He asked for a board or piece of wood to put at the rear of the first set of double skids and a piece of wood on either side of the last skid. He had a hammer and nails with him. They told him "No, we don't have anything like that around here, and we have got a lot of trucks to load, you have got to take off. We need the dock space, just bring it out there in the yard." Raymond Lescault, the defendant's manager, testified that if a driver were to request a piece of wood to block a load, defendant would endeavor to find him one as there were a number of places around the plant where wood was available. However, McCrone testified that they did not have pieces of wood to bind, secure or wedge in against the walls or back of the truck.

Plaintiff upon returning to the dock peered into the back of the truck. At this time he was standing at the dock; that was the same level as the bed of the truck. If he stood to the side he could see beyond the last skid since it did not run all the way to the sides of the truck. Also he could see along the top of the skids. Lescault testified that normally the trucks were loaded before the drivers got there. They looked at already loaded trucks and inspected the load by just looking at it from the back. Lescault agreed that anything other than a look in from the rear would be impracticable. Very few drivers were going to crawl up on to a load and crawl to the front and look down. The major objection would be the clearance of the load that they would be crawling over and through. Lescault further stated a driver looking in from the back would see what looked like a safe, balanced load. Plaintiff likewise testified he did not notice anything unusual or hazardous about the condition of the load when he looked into the rear of the trailer.

After being told to leave the dock, he pulled the truck out about 100 feet. He then made a safety check of the vehicle and they left. There were no scales at the plant although many paper companies have them so he drove about 15 miles to a certified public scale. The load was not balanced so he had to adjust the trailer tandems to put more weight on the back of the trailer.

At 7:30 a. m. on March 3, 1976, they stopped for breakfast in Indiana. They shared breakfast with another over-the-road driver, Morris Chapman. After breakfast, they decided to follow each other for a while. At the time of the accident, Chapman was following plaintiff.

About 30 feet preceding a particular curve, plaintiff, who was driving, noticed a sign indicating a speed of 40 m. p. h. (The previous speed had been 55 m. p. h. but he had actually been going 42 m. p. h.) When he saw the sign he took his foot off the accelerator, put very slight pressure on the brakes and shifted downward. As he approached the curve he felt a small bump; it felt like it was in the tractor-trailer unit. He continued to keep slight pressure on the brakes. His speed would have been somewhat slower than 39 m. p. h. As he started to approach the very beginning of the curve he started to turn the steering wheel. As he touched the wheel, he felt a very heavy jar and a lean to the right. The truck then started to lean hard to the right. The trailer tilted more as it went into the turn and flipped over. Just before the trailer hit, the tractor also flipped over on the passenger side door. Kathy who had been in the passenger seat was thrown out and crushed to death.

Chapman had been driving behind the tractor-trailer. As it rounded the curve he noticed that two of the wheels...