Smith v. Glowacki

• Decision Date: 18 May 1970
• Docket Number: Gen. No. 11154
• Citation: 122 Ill.App.2d 336,258 N.E.2d 591
• Parties: Raymond H. SMITH, Plaintiff-Appellant, v. Leo GLOWACKI, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 591

258 N.E.2d 591

122 Ill.App.2d 336

Raymond H. SMITH, Plaintiff-Appellant, v. Leo GLOWACKI, Defendant-Appellee.

Gen. No. 11154.

Appellate Court of Illinois, Fourth District.

May 18, 1970.

Peter F. Ferracuti, Ottawa, Chester Thomson, Bloomington, for plaintiff-appellant.

Heyl, Royster, Voelker & Allen, Peoria, for defendant-appellee; Richard M. Baner, and James E. Bowles, Peoria, of counsel.

RICHARDS, Justice.

This is an appeal from an order of the circuit court entered in favor of the defendant for a judgment notwithstanding a verdict in favor of the plaintiff. The complaint herein is for damages for personal injuries received by the plaintiff in a collision between the motorcycle he was riding and a pickup truck operated by the defendant. The defendant was the street and water commissioner, special policeman and the dog catcher for the City of Minonk. The pickup truck involved was furnished by the city for defendant's use in the performance of his various duties. The collision occurred in the street near the driveway to the defendant's home.

The defendant's answer contained an affirmative defense alleging that the defendant was an employee of the City of Minonk; that at the time and place of the occurrence defendant was in the scope of his employment; that the plaintiff failed to file, within six months from the date of the injury, a notice to the City of Minonk regarding the accident and the contemplated suit as required by Ill.Rev.Stat.1965, ch. 85, § 8--102, and that because of such failure the plaintiff's suit should be dismissed.

The answer of the plaintiff to the affirmative defense admitted that the defendant was an employee of the City of Minonk; denied that defendant was in the scope of his employment at the time and place complained of; admitted that plaintiff did not file notice of the contemplated suit as required by statute, and denied that by reason of said failure to file such notice he is barred from suing defendant.

The jury returned a verdict for the plaintiff in the sum of $12,000, but also answered in the affirmative the following special interrogatory: 'Was the defendant, Leo Glowacki, at the time of the occurrence, acting within the scope of his employment for the City of Minonk?' A motion for judgment notwithstanding the verdict was allowed on the jury's finding that the defendant was acting within the scope of his employment and because of plaintiff's admitted failure to give the city notice as required by the above-cited statute.

The plaintiff presents this appeal urging that as a matter of law the defendant was not in the scope of his employment and that the requirement in the statute of the notice to the city was in violation of the state and Federal Constitution. Section 65 of the Civil Practice Act, Ill.Rev.Stat.1967, ch. 110, § 65, provides:

'When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.'

Accordingly, the trial court was correct in setting aside the general verdict and entering judgment on the special finding of fact unless there was no substantial evidence to support the special finding or unless it was contrary to the manifest weight of the evidence. Borries v. Z. Frank, Inc., 37 Ill.2d 263, 226 N.E.2d 16; Freeman v. Chicago Transit Authority, 33 Ill.2d 103, 210 N.E.2d 191; Kirby v. Swedberg, 117 Ill.App.2d 217, 253 N.E.2d 699.

The question of whether the defendant was within the scope of his employment was presented to the jury in the issues instruction stating that such was an affirmative defense. An instruction to define the scope of authority of an employee was given by modifying I.P.I. 50.06 to read as follows:

'One of the questions for you to determine is whether or not Leo Glowacki was acting within the scope of his employment.

'An employee is acting within the scope of his employment if he is engaged in the transaction of business which has been assigned to him by his employer, or if he is doing anything which may reasonably be said to have been contemplated as a part of his employment. It is not necessary that an act...