Kapelski v. Alton and Southern R. R.

• Decision Date: 12 January 1976
• Docket Number: No. 75-171,75-171
• Parties: William KAPELSKI, Jr., Plaintiff-Appellee, v. The ALTON & SOUTHERN RAILROAD, a corporation, et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 207

343 N.E.2d 207

36 Ill.App.3d 37

William KAPELSKI, Jr., Plaintiff-Appellee, v. The ALTON & SOUTHERN RAILROAD, a corporation, et al.,

Defendants-Appellants.

No. 75-171.

Appellate Court of Illinois, Fifth District.

Jan. 12, 1976.

Rehearing Denied March 10, 1976.

Dixon Stranes, Nester, McDonnell & Stegmeyer, Belleville, for Missouri Pacific Railroad Co.

Walker & Williams, Belleville, for Alton & Southern Railroad.

Cohn, Carr, Korein, Kunin & Brennan, East St. Louis, for appellee; Rex Carr, East St. Louis, of counsel.

EBERSPACHER, Justice:

Plaintiff, William Kapelski, Jr., filed a two count complaint in the circuit court of St. Clair County. The first count alleged that defendant Alton & Southern Railroad was liable under the Federal Employers' Liablity Act (45 U.S.C. § 51 Et seq.). for injuries he sustained on July 6, 1970 during the course of his employment by said railroad. The second count alleged that defendant Missouri Pacific Railroad was liable for negligence in maintaining a railroad crossing which was the proximate cause of further injuries suffered on August 1, 1970 by the plaintiff. The plaintiff purportedly joined the two counts in one complaint because he was 'unable to differentiate the extent and degree of injury attributed to each defendant.' After a jury trial verdicts were returned against each defendant. The jury assessed damages in the amount of $175,000; $70,000 against defendant Alton & Southern Railroad and $105,000 against defendant Missouri Pacific Railroad. Post-trial motions by each defendant were denied. Thereafter separate appeals to this Court were perfected by each defendant.

Before considering the merits of the contentions raised by each of the defendants we must first address the plaintiff's motion to dismiss the appeal. The plaintiff's motion to dismiss is based upon the fact 'that defendants-appellants have failed to comply with the requirements of Supreme Court Rule 326 in that they have not timely filed the report of proceedings with this reviewing court.' In defendants' objections to plaintiff's motion to dismiss they alleged that a certificate in lieu of record was timely filed pursuant to Supreme Court Rule 325 (Ill.Rev.Stat.1973, ch. 110A, par. 325), that the report of proceedings was timely filed in the trial court, and that plaintiff 'took it upon himself to file what now appears to have been only the common law record.' We find it unnecessary to determine which party ultimately had the responsibility of filing the report of proceedings since it clearly appears that neither the parties nor this Court has been prejudiced by the delay in filing the report of proceedings. In view of the plaintiff's failure to demonstrate any prejudice and the short duration of the delay in filing the report of proceedings we have decided to deny plaintiff's motion to dismiss and reach the merits of the appeal.

On appeal defendant Missouri Pacific contends that it was deprived of its right to a fair trial on the issue of liability and on the issue of damages. Defendant Alton & Southern, who admitted liability, contends that it was deprived of a fair trial on the issue of damages. Since the issues raised by defendant Alton & Southern are concerned solely with the assessment of damages, we shall first discuss the alleged errors defendant Missouri Pacific claims prejudiced its trial on the issue of liability.

The evidence presented in the trial court, albeit disputed, lends itself to the following analysis. The plaintiff was injured, to a greater or lesser extent, while performing his duties as an employee of defendant Alton & Southern. Alton & Southern admitted liability for this incident, but questioned the extent of the injuries incurred by the plaintiff. While allegedly laboring under the pain and discomfort of this injury, the plaintiff had occasion to drive his 750 c.c. motorcycle. During the operation of this motorcycle the plaintiff crossed one of the railroad tracks maintained by defendant Missouri Pacific. According to the plaintiff, the automobile immediately preceding him dislodged one of the wooden railroad ties at the crossing. The plaintiff's motorcycle struck this tie and was thrown into the air. Although the motorcycle came down on its wheels, the plaintiff claims that this occurrence aggravated the injuries to his back he had previously sustained while employed by Alton & Southern. The plaintiff's action against Missouri Pacific was premised on the negligent maintenance of the crossing by Missouri Pacific. Within this context defendant Missouri Pacific Claims that the trial court erred in its admission of certain testimony elicited by plaintiff.

Defendant Missouri Pacific first claims that the trial court erred in permitting plaintiff to testify to an admission of liability allegedly made by a 'claim agent' of Missouri Pacific. The plaintiff was the first witness to testify. He testified that while recuperating in a hospital from the injuries he aggravated at the railroad crossing, he was approached by F. R. Longo, a 'claim agent' of Missouri Pacific. After responding affirmatively to the question: 'Did you have a discussion with him as to the circumstances of the accident?', plaintiff was asked: 'Did he tell you what, if any, responsibility that--.' At this point counsel for Missouri Pacific Objected and requested permission to approach the bench. Out of the hearing of the jury counsel for Missouri Pacific stated, among other things, that his objection was based on the fact 'that this man, Longo, as a claim agent had no authority to make such an admission that would be binding upon the railroad--.' Apparently, this objection was overruled since plaintiff was permitted to ask the same question without offering any evidence on Longo's authority to make admission on behalf of Missouri Pacific. A motion to strike the answer, 'He (Longo) told me Missouri-Pacific was responsible for the accident,' was overruled by the trial court.

As a general rule admissions are inadmissible as hearsay when made by a person who is not in privity with the party against whom such are introduced. (Callaghan v. Myers, 89 Ill. 566; Brotherhood of Railroad Signalmen v. Chicago Zoning Board of Appeals, 348 Ill.App. 106, 108 N.E.2d 43.) Thus, in order to introduce a statement or act by an agent or employee as an admission it must First be shown (1) that he was such an agent or employee (Washburn v. Terminal Railroad Ass'n of St. Louis,114 Ill.App.2d 95, 252 N.E.2d 389), (2) that such statement or act was made or done in and about a matter over which he had actual or apparent authority (Burgard v. Mascoutah Lumber Co., 6 Ill.App.2d 210, 127 N.E.2d 464), and (3) that he spoke or acted under or by virtue of his authority as such agent or employee (Chicago v. Jewish Consumptives' Relief Society, 323 Ill. 389, 154 N.E. 117). While an agent is competent to testify as to his agency or authority, the fact of agency or authority, when disputed or denied, must ordinarily be established by evidence of the acts or conduct of the principal or his statements to the agent or third persons. (Merchants' National Bank of Peoria v. Nichols & Shepard Co., 223 Ill. 41, 79 N.E. 28.) Neither the fact nor the extent of the agency can be proved by evidence of the purported agent's past declarations asserting agency. (4 Wigmore, Evidence, § 1078, p. 176 (Chadbourn rev.1972), McCormick on Evidence, 2nd Ed., § 267, p. 642, Callaghan's Illinois Evidence, vol. 5, § 10.78, p. 428, Gard, Illinois Evidence Manual, Rule 174, pp. 201, 202.) As stated in Holbeck v. Illinois Bankers Life Assurance Co., 318 Ill.App. 296, 47 N.E.2d 721.

'The law is well settled in Illinois that an agent cannot confer power on himself and his agency or authority cannot be established by showing what he said or did. (Citations Omitted.)' 318 Ill.App. at 304, 47 N.E.2d at 724.

See, King et al. v. Chicago, Burlington & Quincy Railroad Co., 235 Ill.App. 401. See also, Beccue v. Rockford Park District, 94 Ill.App.2d 179, 236 N.E.2d 105.

In the instant case plaintiff's counsel failed to lay any foundation concerning the scope and extent of Longo's agency before eliciting testimony concerning the alleged admission from the plaintiff. In fact, at the time such testimony was elicited the sole 'evidence' of Longo's employment by Missouri Pacific was supplied by a question propounded by counsel for the plaintiff. While this question was not objected to and the counsel for Missouri Pacific was willing to characterize Longo as a 'claim agent' for Missouri Pacific, counsel for Missouri Pacific expressly denied that Longo had the authority to make an admission of responsibility on behalf of Missouri Pacific. Cognizant of this denial the trial court should have required proof on the scope and extent of Longo's authority before admitting plaintiff's testimony. (E.g., Grubb v. Milan, 249 Ill. 456, 94 N.E. 927.) In the absence of such proof it was error to admit such testimony over the objection of the Missouri Pacific. Since the trial court did not condition the admission of this testimony to subsequent proof or otherwise reserve its ruling, we need not determine if plaintiff subsequently established that the extent and scope of Longo's authority was sufficient for Longo to make binding admissions of responsibility on behalf of Missouri Pacific. We do note, however, that the only subsequent 'evidence' of Longo's authority was Longo's own testimony which, as we stated earlier, is insufficient to establish such authority.

The foregoing conclusion is in no way premissed upon considerations of either the Res gesta exception to the hearsay rule or the principle that a witness may not give his opinion on the ultimate issue in the case. The facts herein present remove the instant case from the perimeter of either rule.

Defendant Missouri Pacific next contends that the trial court erred in permitting plaintiff, over objection, to state an opinion...