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Smith v. Illinois Valley Ice Cream Co.

JANUARY 26, 1959.




Appeal from the Circuit Court of LaSalle county; the Hon. WALTER DIXON, Judge, presiding. Affirmed.


Rehearing denied March 5, 1959.

This is an appeal from a judgment in the amount of $25,000 for personal injuries sustained by the plaintiff in a motor vehicle collision on July 6, 1954. The plaintiff was riding as a passenger in a pick-up truck of the J.P. Wetherby Construction Co. when this truck, driven by Albert Cole, collided with a milk truck owned by the defendant, Illinois Valley Ice Cream Co., and driven by Lyle Weber.

The truck in which the plaintiff was riding was being driven in a northerly direction on Sanger Street in Ottawa near a point where Sanger Street was intersected by Lafayette Street. Sanger Street, at this point, extended generally north and south and Lafayette extended generally east and west. The defendant's milk truck was being driven west on Lafayette and struck the rear of the pick-up truck. Traffic on Sanger Street was controlled by stop signs, and Lafayette was a through street. At the place of the collision, the speed limit was 25 miles per hour.

Plaintiff's evidence tended to show that the truck in which the plaintiff was riding stopped at Lafayette and then proceeded north at a reasonable rate of speed and was struck in the rear by the defendant's truck which was travelling at a high rate of speed. There was evidence that defendant's truck left skid marks for fifty feet before striking a tree west of the intersection. The truck plaintiff was riding in was turned around 180° and was on the shoulder.

The evidence is uncontradicted that the truck in which the plaintiff was riding was further into the intersection at the time of impact and was travelling more slowly than the defendant's milk truck.

Defendant's evidence tended to show that their truck was being driven at a lawful rate of speed and that the truck in which plaintiff was riding did not stop at the stop sign. Defendants showed that their truck was equipped with a governor set to restrict the speed of the truck to 32 to 36 miles per hour.

Both vehicles sustained heavy damage in the collision, and the plaintiff was said to have struck his hand on the dash of the truck in which he was riding. He sustained a fractured hand which healed satisfactorily. However, there was evidence of injury to the median and ulnar nerves, resulting in a condition characterized as a "claw hand" which an expert witness said could have been caused by the injury received in the collision. The condition was said to be permanent.

Plaintiff was a semi-skilled laborer, 46 years old, earning $2.65 per hour. He was right handed and the condition complained of was to his right hand.

On the day the cause was set for trial, the defendant moved for leave to file a special plea alleging that plaintiff's injuries, if any, were proximately caused by the negligence of some third person, for whose conduct the defendants were not responsible. From all that appears in the record, the motion was without notice to the plaintiff. Plaintiff objected to the filing of the special plea, and leave to file the plea was denied.

Defendants contend and plaintiff admits that a court may grant leave to file a special plea at any time. Authority for such action can be found in section 46 (1) Civil Practice Act, Chapter 110, Illinois Revised Statutes, 1957. This section provides as follows,

"At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either in form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand." It is conceded by both parties that the granting or refusal of any amendment lies within the sound discretion of the trial court. The question then is whether or not the court has abused its discretion in refusing to allow the amendment.

In defendant's motion, no special reasons are alleged for the action sought to be taken nor was any excuse made for having failed to have made the amendment at an earlier date. By the same token, the record is silent as to what the plaintiff's objections were. We can assume, however, that the court considered the motion and the objections and that its decision was based upon a hearing on the motion and objections thereto. No record of the hearing appears in the record or abstract. With the record in this condition we are not prepared to say that the court abused its discretion in refusing to allow the amendment.

If we were to say that the court abused its discretion with no showing in the record of any circumstances proved on the hearing on the motion, we would be saying that the court had no discretion at all. For if the court has discretion to allow the amendment, but no discretion to deny the amendment, it cannot be said that the action is discretionary. Before we would be justified in finding that the court abused its discretion and acted arbitrarily and capriciously, that abuse and arbitrary and capricious action should be demonstrated by matters within the record. Without such a showing we conclude that the court acted properly when leave was denied to make the amendment.

On the trial of the cause, the defendant offered to prove that the plaintiff had received unemployment compensation and had made a statement to an employee of the Department of Labor to the effect that he was able to work. Plaintiff contended that he was prevented from working as a semi-skilled laborer by reason of his injury.

The receipt of unemployment compensation payments was said to be competent because that evidence showed that a statement was made as to the plaintiff's ability to work. The offer of proof was refused and the objection sustained.

Section 640 of Chapter 48, Illinois Revised Statutes, 1957, provides in part as follows:

"Except as is hereinafter provided in this Section, information obtained from any individual or employing unit pursuant to the administration of this Act shall be confidential and shall not be published or be open to public inspection, nor be used in any court in any action or proceeding pending therein, nor be admissible in evidence in ...

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