Kavale v. Morton Salt Co.

• Decision Date: 10 April 1928
• Docket Number: No. 18140.,18140.
• Citation: 329 Ill. 445,160 N.E. 752
• Parties: KAVALE v. MORTON SALT CO.
• Court: Illinois Supreme Court

329 Ill. 445

160 N.E. 752

KAVALE

v.MORTON SALT CO.

No. 18140.

Supreme Court of Illinois.

Feb. 24, 1928.

Rehearing Denied April 10, 1928.

Error to Third Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; Jesse Holdom, Judge.

Action by John Kavale against the Morton Salt Company. Judgment for plaintiff was affirmed by the Appellate Court (242 Ill. App. 205), and defendant brings certiorari.

Affirmed.

Kirkland, Patterson & Fleming (Weymouth Kirkland, Joseph D. Ryan, and William H. Symmes, of counsel), for plaintiff in error.

Schuyler, Ettelson & Weinfeld (William C. Graves, Edward J. Hennessy, Carl J. Appell, and George W. D. Lederer, of counsel), for defendant in error.

STONE, J.

This cause is here by writ of certiorari to review the judgment of the Appellate Court affirming a judgment for $31,000 entered by the superior court of Cook county in an action in tort brought by defendant in error.

The undisputed facts are that, on Saturday, October 27, 1923, about 3:15 p. m., at the corner of Twenty-Second street and Wabash avenue, in the city of Chicago, defendant in error was run down by a truck owned by plaintiff in error and driven by its chanffeur, Joseph Fotre. Defendant in error, with a number of other persons, was about to enter a street car on Twenty-Second street. This car was headed west on Twenty-Second street just west of Wabash avenue. The street car line on Twenty-Second street extends only to the west side of Wabash avenue. The street cars using that track turn back at that point. A street car had arrived from the west, and, as the motorman was turning the trolley preparatory to a return west, Fotre drove plaintiff in error's truck, a large machine of seven and one-half tons' capacity, from Wabash avenue into the crowd. One woman was killed, and two others badly injured. Defendant in error was knocked down, and a wheel passed over his left leg, causing a compound fracture of both bones. His left hand and arm were caught in the drive chain of the truck, resulting in a compound fracture of the metacarpal bones, and of both bones of the left forearm. He was in a hospital for a period of six months, and for more than four months thereafter was unable to leave his bed. Wabash avenue extends north and south in the city of Chicago. Twenty-Second street extends east and west, and crosses Wabash avenue at right angles. The distance from the west line of Wabash avenue to the east end of the Twenty-Second street car track is variously estimated by the witnesses to be from 40 to 75 feet.

The declaration consists of fourteen original counts and two additional counts, charging various grounds of negligence. Plaintiff in error filed the general issue and special pleas denying the allegations of the various counts of the declaration, denying possession of the truck or the management and control of the same, and averring that the truck at that time was not being operated for the use of plaintiff in error. On the hearing, no denialwas made of the ownership of the truck. The defense offered was that Fotre was not in the service of plaintiff in error at the time of the injury, but was on an expedition of his own, and that the rule of respondeat superior does not apply. Plaintiff in error, at the close of plaintiff's evidence, and at the close of all the evidence, moved for an instruction requiring that the jury return a verdict of not guilty. These motions were denied, and plaintiff in error has assigned error on those rulings of the court. This is the principal issue here. On appeal to the Appellate Court, the judgment was affirmed.

There are but two questions involved in this review: First, whether there is in this record any evidence fairly tending to support the plaintiff's case; and, second, errors in the admission of evidence.

It is urged in support of the first point that the trial court should have directed a verdict in accordance with the motions filed by plaintiff in error. The ownership of the truck was not denied on the trial or that Fotre was an employee of plaintiff in error, and it is conceded by counsel that in that condition of the record the presumption arises that, at the time of the injury complained of, he was running the machine in the master's service. But it is argued that the evidence that Fotre was outside the duties pertaining to his master's business is uncontradicted, and establishes the fact of his departure from his master's service so clearly that the trial court should have held, as a matter of law on the whole evidence, that such facts were shown, and should have instructed the jury to find the issues for the defendant. It is argued that the record contains no evidence that at the time of the injury Fotre was engaged in his master's business, and, since this is so, the prima facie case made by plaintiff exists as such only because of the presumption, and is entirely overcome by defendant's uncontradicted evidence. This evidence was given by Fotre. He testified that about 12 o'clock he left the yard of plaintiff in error, which is located at the foot of Water street, on the east side of Wabash avenue, in the city of Chicago, and drove south on Wabash avenue to Sixteenth street, where he and a man named Dominick, who was with him, stopped to get lunch; that before he left the yard of plaintiff in error he was told that there were no further orders for him, and for him to ‘pull in.’ It appears from the evidence that this was Saturday afternoon, and that the truck drivers were not expected to work on that afternoon.

Fotre also testified that he had a load of wood or discarded lumber left over from a remodeling of the plant of plaintiff in error which he was taking to the home of another employee of plaintiff in error, and that the trucks were kept in a garage at 2625 South Wabash avenue. He further testified that, after stopping at Sixteenth street for something to eat, he and Dominick, who he testified worked in the yard with him, drove down Wabash avenue to Twenty-Third street and west on Twenty-Third street to Wentworth avenue, a distance of five blocks, where he delivered this load of wood. He was unable to give the name of the party to whom he delivered the wood, and gave no identification of him other than saying that he was employed by plaintiff in error, and lived on Wentworth avenue just west of Twenty-Second street. That party did not appear as a witness, and the record does not disclose his identify. Fotre testified that, after he had delivered the wood, they drove north on Wentworthavenue one-half block to Alexander street, and turned west a short distance to the house where Dominick boarded; that there they had something to eat, and a glass of wine or two, and stayed about an hour and a half, when they started to go to a barber shop on Twenty-Third street, between Wabash avenue and State street. State street is the first street west of Wabash avenue. He stated that they drove east on Alexander street to Wentworth avenue, south on Wentworth avenue to Twenty-Third street, then east on Twenty-Third street toward Wabash avenue. As the barber shop to which they were going was...