Fred Olson Motor Service v. Container Corp. of America

• Decision Date: 13 February 1980
• Docket Number: No. 77-1504,77-1504
• Citation: 401 N.E.2d 1098,37 Ill.Dec. 5,81 Ill.App.3d 825
• Parties: , 37 Ill.Dec. 5 FRED OLSON MOTOR SERVICE and Royal Indemnity Insurance Co. as subrogees of the Jacobus Company, Plaintiffs-Appellees, v. CONTAINER CORPORATION OF AMERICA, a corporation, Stover Brothers Trucking Co., a corporation and William D. Paulson, Defendants-Appellants. CONTAINER CORPORATION OF AMERICA, a corporation, Defendant-Counter-Plaintiff, Cross-Appellant, v. STOVER BROTHERS TRUCKING CO., and William D. Paulson, Defendants-Counter- Defendants-Appellants. STOVER BROTHERS TRUCKING CO., a corporation, Counter-Plaintiff-Appellant, v. CONTAINER CORPORATION OF AMERICA, a corporation, Counter-Defendant, Cross- Appellant. FEDERAL INSURANCE COMPANY as subrogee of Fred Olson Motor Service Co., Plaintiffs-Appellees, v. CONTAINER CORPORATION OF AMERICA, a corporation, Stover Brothers Trucking Co., a corporation and William D. Paulson, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1098

401 N.E.2d 1098

81 Ill.App.3d 825, 37 Ill.Dec. 5

FRED OLSON MOTOR SERVICE and Royal Indemnity Insurance Co.

as subrogees of the Jacobus Company, Plaintiffs-Appellees, v. CONTAINER CORPORATION OF AMERICA, a corporation, Stover

Brothers Trucking Co., a corporation and William

D. Paulson, Defendants-Appellants.

CONTAINER CORPORATION OF AMERICA, a corporation, Defendant-Counter-Plaintiff, Cross-Appellant, v. STOVER BROTHERS TRUCKING CO., and William D. Paulson,

Defendants-Counter- Defendants-Appellants.

STOVER BROTHERS TRUCKING CO., a corporation, Counter-Plaintiff-Appellant, v. CONTAINER CORPORATION OF AMERICA, a corporation,

Counter-Defendant, Cross- Appellant.

FEDERAL INSURANCE COMPANY as subrogee of Fred Olson Motor

Service Co., Plaintiffs-Appellees, v. CONTAINER CORPORATION OF AMERICA, a corporation, Stover

Brothers Trucking Co., a corporation and William

D. Paulson, Defendants-Appellants.

No. 77-1504.

Appellate Court of Illinois, First District, Third Division.

Feb. 13, 1980.

Rehearing Denied March 20, 1980.

Gates W. Clancy, Geneva (James S. Mills, Geneva, of counsel), for Stover Brothers Trucking Co. and William D. Paulson.

Maddux, Johnson & Cusack, Ltd. Chicago (Thomas H. Fegan, Chicago, of counsel), for Container Corporation of America.

James R. Quinn, Chicago, for Fred Olson Motor Service, Royal Indemnity Insurance.

McNAMARA, Justice:

This consolidated action involves a suit by the subrogees of Fred Olson Motor Service against Stover Brothers Trucking Co., and its driver, William D. Paulson, and Container Corporation for damages to Olson's truck and cargo arising out of a three truck accident. Container filed a counterclaim against Stover-Paulson for damages to its vehicle and for indemnity in the event of Olson's recovery against Container. Stover also filed a counterclaim against Container for its property damage.

The accident in question occurred on March 14, 1972, on Illinois Route 59 near the East-West Tollway. It involved three tractor trailers and their respective drivers: Arthur Butler, driver of the tractor trailer owned by Olson; William D. Paulson, driver of the tank truck owned by Stover; and Daniel Gutkowski, driver of the Container truck. Gutkowski died as the result of injuries sustained in the accident. There were two impacts in the accident: the first involved the Stover and Container vehicles, and the second impact was between the Olson and Container vehicles.

Separate actions were filed against Stover-Paulson. The Gutkowski estate brought a wrongful death action against Stover-Paulson in the circuit court of Cook County. This action resulted in a verdict and then judgment in favor of the Gutkowski estate. In that case, Paulson was not permitted to testify as to his version of the accident by operation of the Dead Man's Act, Ill.Rev.Stat.1971, ch. 51, par. 2, and the jury found that Paulson was negligent in the operation of the Stover truck. This court affirmed the judgment on appeal. Gutkowski v. Stover Bros. Trucking Co. (1976), 42 Ill.App.3d 257, 355 N.E.2d 761.

Arthur Butler brought suit in the federal district court against Container, Stover and Paulson for personal injuries sustained in the accident. Butler was granted summary judgment against Stover-Paulson as to Paulson's negligence on collateral estoppel grounds. The district court accepted Butler's argument that Paulson's negligence had been determined in the Gutkowski action. The seventh circuit, however, reversed the district court, holding that the collateral estoppel doctrine did not apply because, by operation of the Dead Man's Act, Stover-Paulson did not get a full and fair opportunity to litigate the issue of negligence. The court ruled that it would be unfair to permit Butler to use the doctrine of collateral estoppel to obtain a better position than he ordinarily would have but for the identity of the parties in the Gutkowski action. Butler v. Stover Bros. Trucking Co. (7 Cir. 1977), 546 F.2d 544.

In the present case, Container moved for summary judgment against Stover-Paulson urging that their negligence had been determined in the Gutkowski action. The trial court granted Container's motion and ordered that Stover-Paulson were collaterally estopped from re-litigating the issue of negligence with respect to the initial impact between the Stover and Container vehicles. The grant of summary judgment terminated Stover-Paulson's counterclaim for property damage. It also decided the liability portion of Container's action for property damage against Stover-Paulson, and it allowed Container to be indemnified by Stover-Paulson for any damages Olson might recover from Container. The trial court also granted Container's motion in limine to bar Stover-Paulson from making any reference to the initial impact with the Container truck. At the conclusion of the present trial, the jury was instructed liability already had been resolved in favor of Container for damages received from the impact with the Stover-Paulson truck. The jury returned a verdict in favor of Olson against Container, Stover and Paulson. The court denied Stover-Paulson's post-trial motion and entered judgment for Olson in the amount of $17,099.00. The court subsequently entered an additur to the judgment, and entered judgment in favor of Container against Stover-Paulson.

At the present trial, Arthur Butler testified that he was driving the Olson truck northbound on Route 59. He was approximately 500 feet behind the Stover-Paulson truck. Both trucks were traveling at about 40 miles per hour. Butler saw the southbound Container truck collide with the Stover truck just south of an overpass. The Container truck then came across the southbound lane, crossed the center line and collided with his truck approximately 200 feet south of the initial collision. Butler attempted to move on to the northbound shoulder of the road after witnessing the initial impact and was only partially on the roadway when struck by the Container vehicle. The Olson truck was demolished.

Sam Galante testified by evidence deposition that he was driving a vehicle southbound behind the Container truck. He saw the northbound Stover-Paulson truck swerve into the southbound lane and sideswipe the Container truck. The Container vehicle then veered into the northbound lane and struck the Olson truck. After the initial collision Galante avoided a truck tire in the roadway by driving his vehicle into a ditch, but nevertheless was able to witness the second impact. Galante testified that Butler had tried to move the Olson vehicle onto the shoulder of the roadway before the collision with the Container vehicle. Galante testified that he saw no flat tire on the Container truck but stated that at an earlier deposition he testified that he had noticed that a front tire was flat.

William Paulson was called by Olson as an adverse witness under section 60 of the Civil Practice Act. (Ill.Rev.Stat.1975, ch. 110, par. 60.) As he drove north, he was traveling at 45 miles per hour. He observed nothing unusual about the Container truck before the collision. Paulson testified that the Container truck came into the northbound lane and struck his truck. Paulson pulled his vehicle onto the shoulder of the road and did not witness the impact between the Olson and Container trucks.

State Trooper Dennis Erickson testified that he investigated the accident. When he arrived, he observed the Olson vehicle facing north in the ditch next to the northbound lane and the Container vehicle facing south in the northbound lane. The Stover vehicle was on the shoulder of the road north of the Container vehicle. Paulson told Erickson that the left front of the Container truck lurched as if a tire blew out and then collided with his vehicle. Erickson measured the skid marks of the vehicle and found that all skid marks from the Container vehicle were in the northbound lane. Erickson examined the left front tire of the Container truck and found that the left front tire of the Container truck was cut and the inner tube was protruding from the tire.

Stover-Paulson contend that the grant of summary judgment on the grounds of collateral estoppel denied them the due process right to a full and fair hearing in the present case. They maintain that they were deprived of a full opportunity to litigate the issue of negligence in the Gutkowski action because Paulson was not permitted to testify about the accident by operation of the Dead Man's Act. Ill.Rev.Stat.1971, ch. 51, par. 2.

Estoppel by verdict, or collateral estoppel, operates as an absolute bar in a subsequent cause of action when the same parties or their privies attempt to re-litigate the identical issues actually or necessarily decided by a court of competent jurisdiction in an earlier, but different cause of action. (Kramer v. Chicago Title & Trust Co. (1979), 69 Ill.App.3d 1015, 26 Ill.Dec. 275, 387 N.E.2d 1105; Raymond Constr. Co. v. Midwest America Dev. (1978), 67 Ill.App.3d 332, 24 Ill.Dec. 40, 384 N.E.2d 907.) Generally, collateral estoppel will apply where (1) the issue decided in the prior adjudication is identical with the one presented in the suit in question, (2) a final judgment has been rendered on the merits, and (3) the party against whom the estoppel is asserted is a party or in privity with a...