Susemiehl v. Red River Lumber Co.

• Court: Appellate Court of Illinois
• Writing for the Court: WOLFE
• Citation: Susemiehl v. Red River Lumber Co., 306 Ill.App. 430, 28 N.E.2d 743 (Ill. App. 1940)
• Decision Date: 08 August 1940
• Docket Number: Gen. No. 9552.
• Parties: SUSEMIEHL v. RED RIVER LUMBER CO. ET AL.

306 Ill.App. 430

28 N.E.2d 743

SUSEMIEHL

v.RED RIVER LUMBER CO. ET AL.

Gen. No. 9552.

Appellate Court of Illinois, Second District.

Aug. 8, 1940.

Appeal from Circuit Court, Kane County; Frank W. Shepherd, Judge.

Action by Henry Susemiehl, as administrator of the estate of Walter Susemiehl, deceased, against the Red River Lumber Company, a corporation, and another, to recover damages for death of plaintiff's intestate as a result of an automobile accident. From a judgment for the plaintiff against both defendants, named defendant appeals.

Affirmed. Cassels, Potter & Bentley, Ralph F. Potter, and Kenneth B. Hawkins, all of Chicago, for appellant.

Sears, O'Brien & Streit, of Aurora, for appellee.

WOLFE, Presiding Justice.

An action in tort was filed in the Circuit Court of Kane County by the Administrator of the Estate of Walter Susemiehl, deceased, for damages for the wrongful death of plaintiff's intestate, as a result of a headon collision between two automobiles about 8 o'clock on the night of September 7, 1938, on U. S. Route 30, a mile or more south of the city limits of Aurora, Illinois. The suit was brought against the Red River Lumber Company, a Minnesota corporation authorized to do business in Illinois, and Walter Gehrke, a salesman residing in Elmhurst, Du Page County, who owned the Buick automobile which collided with the Dodge automobile owned and operated by Walter Susemiehl.

The complaint consists of two counts. The first count charges both the defendants with driving and operating the southbound Buick car in a negligent, careless, wrongful and improper manner, and by reason whereofthe Buick car ran into the automobile of the plaintiff's intestate, which resulted in injuries from which he died on October 31, 1938; that the plaintiff's intestate was in the exercise of due care and caution for his own safety; that he left him surviving a father, mother and two sisters. The second count charges both of the defendants were negligently driving the Buick car in excess of 50 miles per hour; that they failed to decrease the speed on the wet and slippery roadway, and failed to keep a proper lookout for the automobile of the plaintiff's intestate approaching from the opposite direction. The plaintiff asks damages in the sum of $10,000.

The defendants by their respective attorneys filed separate appearances and answers. The Red River Lumber Company specifically denied it was driving and operating the Buick, denied that Walter Gehrke at the time and place was the agent or servant of the defendant, the Red River Lumber Company, acting in the course and scope of his employment, denied that Walter Gehrke was on any business connected with the Red River Lumber Company, denied that the Buick car was owned by or operated and controlled by the Red River Lumber Company, or by any servant or agent of it then and there acting in the course and scope of his employment, denied any negligence on its part, and denied due care on the part of the plaintiff's intestate. The answer of the Red River Lumber Company to the second count was in all respects similar to its answer to the first count.

Walter Gehrke in answer to the first count denied he was driving and operating the Buick, and stated that Harold V. Watts was driving and operating the Buick at the time and place mentioned in the complaint. He denied that plaintiff's intestate was in the exercise of due care and caution for his own safety, denied that he (Gehrke) negligently, carelessly and improperly drove and operated the automobile. The answer of Walter Gehrke to the second count made similar denials to each of the allegations therein.

The case was tried before a jury who found the issues in favor of the plaintiff and assessed damages against each of the defendants in the sum of $6,200. Each of the defendants filed written motions for judgment notwithstanding the verdict, which were overruled. Each of the defendants then filed motions for a new trial, and the same were overruled. The Court then entered judgment on the verdict against Walter Gehrke and the Red River Lumber Company for the amount of $6,200. It is from this judgment that the Red River Lumber Company has prosecuted and perfected an appeal to this Court. Walter Gehrke has not joined in the appeal, nor has he filed a cross-appeal or assigned cross-errors.

It is first insisted by the appellant that the verdict of the jury and judgment of the Court is contrary to, and not supported by the evidence in the case. From a review of the evidence it discloses, that after the accident plaintiff's intestate car, which had been travelling north on a hardpaved road, was found to be with its right wheels off of the pavement for a distance of approximately 2 feet; that the car owned by the defendant, Walter Gehrke, was standing with its left front wheel off of the pavement and left rear wheel off, or very close to the edge on the east side of the pavement; that the cars had collided and were locked together and had to be pulled apart by two tow trucks; that it had been raining before the accident occurred, and the pavement was slippery; that the tracks of the Dodge car driven by plaintiff's intestate showed that he had driven a distance of 20 to 25 feet with the right wheels of his car off of, or to the right of the pavement as he was going north. The attorneys for appellant and appellee differ widely about the skid marks made by the Buick car, but the evidence as abstracted, shows that the skid marks started 55 or 60 feet north of where the cars stood after the collision, and they started approximately 4 feet east of the black line in the center of the pavement and continued to the rear wheels of the Buick car. While the witnesses differ somewhat in minor details as to where the cars were after the accident, it seems to us that there is no question but that plaintiff's intestate car, at the time of the collision, was being driven on the right side, or in the proper lane of traffic, and that the defendant Walter Gehrke's car was being driven on the wrong side of the road. There was no eye witness to the accident that was competent to testify. Without objection, plaintiff showed that the deceased, Walter Susemiehl, was a careful driver. We think the evidence clearly sustains the verdict of the jury that at the time of the accident, the driver of the defendant's car was guilty of negligence, that was the proximatecause of the collision and that the plaintiff's intestate was in the exercise of due care and caution for his own safety.

It is next insisted by the appellant that, “Walter Gehrke was not an agent or servant of the Red River Lumber Company at the time and place of the accident and was not acting in the scope of any employment for the Red River Lumber Company, but was an independent contractor or on a frolic of his own,” and that, “The Court committed reversible error in permitting the plaintiff to introduce in evidence the report of the accident made by J. P. Rinn and mailed to the Hartford Accident & Indemnity Company which issued a policy of workmen's compensation insurance to the Red River Lumber Company.” The plaintiff introduced in evidence Exhibit No. 6, which is a report made out by Mr. J. P. Rinn, the Managing Officer of the Red River Lumber Company, to the Hartford Accident & Indemnity Company, stating that their employee, Walter Gehrke, had been injured and the report was made for the purpose of claiming compensation for such injuries. The report is made upon the regular standard form for employer's first report of injury to the claim department of Hartford Accident & Indemnity Company. The first seventeen questions relate to the business of the company, the names of the injured parties and are of a general nature. The seventeenth question states that Walter Gehrke had been employed by the Red River Lumber Company for twelve years; that he worked six days a week with an average weekly earning of $64.61; that the machine or tool, or thing causing his injury was an automobile. Question 24 is as follows: “Describe fully how the accident occurred, and state what the employee was doing when injured. (A) Head-on automobile collision while employee was driving his car on regular company business.” “Question No. 27, probable length of disability, two months.” At the time this exhibit was offered, Mr. Hawkins, the attorney for the Red River Lumber Company, made the following objection: “Let the record show that I object to the admission of the evidence of the answer typed on Exhibit 6, to questions No. 24 and 27, on the ground that they are merely conclusions of the witness, but not based on his own knowledge, but hearsay.” If the Court properly admitted this exhibit, then there is evidence to sustain the verdict in that Walter Gehrke was an agent or servant of the Red River Lumber Company at the time and place of the accident,and was acting in the course and scope of the employment of said company.

This exhibit was admitted on the theory that it was an admisson by the defendant company as against their interest, and that such is competent evidence, for the jury to consider. In the early case of Chicago, B. & Q. Railroad Company v. Coleman, 18 Ill. 297, 298,68 Am.Dec. 544, the Supreme Court of our State, in considering the question of when a corporation is bound by the admission of its officers, uses this language: “They have become numerous, and their operations extend into almost every enterprise of the country, demanding such powers and facilities, within their sphere of action, as belong to natural persons in the prosecution of the like enterprises; and being intangible and invisible beings, created by the law, they can exercise them through natural persons only. Unless they may be bound, in the ordinary affairs of the corporation, by the acts and admissions of their officers, so far as relates to the business usually transacted through such officers, they would enjoy an...