Galluccio v. Hertz Corp.

• Decision Date: 07 September 1971
• Docket Number: Gen. No. 69--124
• Citation: 274 N.E.2d 178,1 Ill.App.3d 272
• Parties: Joseph GALLUCCIO et al., Plaintiffs-Appellees, v. The HERTZ CORPORATION, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 178

274 N.E.2d 178

1 Ill.App.3d 272

Joseph GALLUCCIO et al., Plaintiffs-Appellees, v. The HERTZ CORPORATION, a corporation, Defendant-Appellant.

Gen. No. 69--124.

Appellate Court of Illinois, Fifth District.

Sept. 7, 1971.

Hoagland, Maucker, Bernard & Almeter, Alton, for plaintiffs-appellees; James K. Almeter, Alton, of counsel.

EBERSTACHER, Presiding Justice.

This action was brought to recover damages based upon the dual theories of implied warranty and strict liability in tort. There were originally four plaintiffs. One of the plaintiffs, Galluccio, leased a Ford Econoline Van from the defendant, Hertz Corporation. The remaning three plaintiffs, Richard Cicere, Salvatore Barnetti and Carmelo Di Maria were passengers in the van and were members with Gallucio of a rock and roll band. The group was traveling in the defendant's vehicle from St. Louis, Missouri, to Rock Island, Illinois. The plaintiffs were involved in a collision with an automobile driven by a person not a party to this action. The plaintiffs alleged that faulty brakes on the leased vehicle was the proximate cause of the collision.

Trial was held in January and February, 1969 and at the conclusion of the evidence plaintiff was granted leave to file an 'Amendment to Complaint' which contained only the theory of strict liability in tort. The jury rendered a verdict for plaintiffs Galluccio, Barnetti and Di Maria. Upon these verdicts of the Court, on February 3, 1969, entered judgment from which this appeal is taken. Plaintiff Cicere apparently dismissed his count of the original complaint when the 'Amendment to Complaint' was filed.

The defendant-appellant, The Hertz Corporation, hereinafter called Hertz, presents the following issues for review by this Court. (1) Did Plaintiffs' Amendment to Complaint as Amended state a cause of action? (2) Was Plaintiff Barnetti, the driver of the vehicle, guilty of negligence as a matter of law and should the Special Interrogatory finding he was not so negligent be set aside? (3) Were the plaintiffs at the time of the collision engaged in a joint enterprise and should the Special Interrogatory finding that they were not so engaged be set aside? (4) Is the negligence of Barnetti imputable to plaintiff Galluccio? (5) Is the negligence of Barnetti imputable to plaintiff, Di Maria? and (6) Should the court grant a new trial for the defendant in the case of each plaintiff?

The collision which resulted in this lawsuit occurred on February 12, 1967, at about 6:30 P.M. at the intersection of Route 111 and Hartford Road on what is also known as Madison Avenue in Madison County, Illinois.

Plaintiffs had just finished their musical engagement at a night club in St. Louis. On February 11, 1967, plaintiff Galluccio leased a 1963 Ford Econoline Van from Hertz. The purpose of leasing the vehicle was to transport the group and instruments to their next engagement in Rock Island, Illinois.

The plaintiffs left St. Louis, Missouri, in the Hertz vehicle the afternoon of February 12, 1967, bound for Rock Island, Illinois. They were on their journey until the collision. The plaintiff, Barnetti was driving, plaintiff Galluccio was sitting in the middle of the front seat, plaintiff Di Maria was sitting on the right seat in the front. Richard Cicere was lying down in the back of the vehicle with the cargo.

At the time of the collision it was dark and the weather was clear. The intersection in question is four lane north-south on Route 111 and two lane east-west on Hartford Road. The intersection is controlled on all corners by stop signs. There is a railroad crossing fifty-eight feet four inches south of the southeast corner stop sign. The southeast corner stop sign controls traffic approaching the intersection from the south.

The plaintiffs were proceeding from the south in a northerly direction on Route 111 in the right-hand lane closest to the shoulder. The other vehicle in the collision was being driven in a southerly direction on Route 111. This second vehicle made a stop at the intersection and proceeded to turn left (to the east) onto Hartford Road. The plaintiffs' vehicle did not stop and struck the right side of the second vehicle. The plaintiffs' vehicle left two skid marks thirty-nine feet six inches long. The skid marks commenced seven feet south of the southeast corner stop sign and continued uninterrupted to the point of impact.

The plaintiffs alleged that the brakes on the leased vehicle were faulty which proximately caused the accident. Plaintiffs' evidence showed that the brakes were last relined some 45,000 miles before the collision. There was also evidence that the master brake cylinder on the vehicle had to be refilled from one-half to three-fourths every four months since December, 1965. The master cylinder was last refilled before the collision on June 10, 1966, some 11,600 miles and eight months before the collision.

Plaintiff Barnetti testified that the brakes failed causing the collision. He stated that as he approached the intersection of the collision, south of the railroad sign, he saw a sign on his left which said something about a stop ahead and he applied his brakes. 'I hit my brake, and I got a brake'. About twelve or thirteen car lengths from the railroad sign he noticed two car lights ahead of him in an odd position. He stated that it looked as though they were coming up the island which separates the lanes of the highway. He testified that at this time his speed was 45 miles per hour. He observed the railroad sign and a red thing behind the railroad sign. When he was six to eight car lengths from the railroad sign, he again applied his brakes to slow down going over the railroad tracks. This time, however, upon applying the brakes, 'there was nothing'. The vehicle kept rolling and he started to pump the brakes and tried to shift into second. As he passed over the railroad tracks he testified that he managed to pump up the brakes. When he felt a brake, he gripped the steering wheel hard and kept his foot hard on the brake. The next thing Barnetti recalls is waking up on the ground. Plaintiff Barnetti further testified that prior to the collision while driving the vehicle he had had difficulty with the vehicle. He said the steering was loose and the brakes were spongy and low. By 'spongy' he said he meant the brake pedal was not solid.

A Mr. Donald Matthews used the vehicle last before the plaintiffs. He turned the van in on February 11, 1967. His testimony agreed with Barnetti that the brakes were low, the brake pedal going more than half-way to the floor. He also agreed that the steering was loose and worn.

The van was examined after the accident by a Mr. William Klug on behalf of the plaintiffs and by a Mr. Fred H. Deppe on behalf of the defendant. Mr. Klug was Automotive Service Manager and in charge of service operations of Hulton Ford, Wood River, Illinois. He has been in the automotive service filed for virtually all of his working years which number in excess of 20. Over the past 15 years he has worked on or supervised the work on an average of one brake system a day. This work included Ford Econoline braking systems. Mr. Deppe is a metallurgist. His knowledge of hydraulic brake systems is 'from the standpoint of a metallurgist factor'. He averaged for the past fifteen years from eight to fifteen brake disassemblies per year for brake failures. His only experience on Ford Econoline brakes is disassembly.

Both Mr. Klug and Mr. Deppe agreed that a 'spongy' brake pedal indicated that the brake fluid had gotton low and air had gotten into the hydraulic system. They also agreed that when this happens a driver can suddenly lose his brakes entirely and that the brake pedal can then be built up by pumping. Both agreed that a 1963 Ford Econoline should have brakes relined approximately every 30,000 miles. Both agreed that the brakes on the van were worn out.

At the close of plaintiffs' case and at the close of all the evidence the defendant filed Motions for Directed Verdicts which were denied.

The defendant first contends in this appeal that this court should enter judgment in arrest of judgment since plaintiffs' Amendment to Complaint as amended did not state a cause of action against the defendant. Defendant asserts that the law of strict liability in tort applies only to the sale of goods and applies to manufacturers, wholesalers, and retailers of goods, citing Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill.App.2d 315, 229 N.E.2d 684, quoting from p. 334, 229 N.E.2d p. 693:

'The language of Suvada is all inclusive as to the parties in a chain who places the article into commerce. Prosser, in the Law of Torts, 3rd ed., Chapter 19, § 97, p. 862, discusses the liability of retailers and wholesalers, saying:

'All of the valid arguments supporting strict liability would appear to apply with no less force against both kinds of dealers; and there are enough cases where the manufacturer is beyond the jurisdiction, or even unknown to the injured plaintiff, to justify giving the consumer the maximum of protection, and requiring the dealer to argue out with the manufacturer any questions as to their respective liability. Particularly today, when the large wholesale supply house or even the retail chain is often actually the prime mover in marketing the goods, and the manufacturer only a small concern which feeds it, there is no reason to draw distinctions between different kinds of sellers."

Plaintiff Galluccio was the bailee of the van and he executed the agreement. Defendant contends that the rights, duties and liabilities between plaintiff Galluccio and the defendant must be governed by the Lease Agreement and law of bailment, and not the law of strict liability in tort. Defendant cites Insurance Company of North America v. Elgin, Joliet & Eastern Ry. Co., 229 F.2d 705, 7th Cir. (1956) quoting at p. 712:

'As said in 8 C.J.S., Bailments, § 22, p. 255:

'The rights, duties,...