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Gilpin v. Lev

APRIL 21, 1966.

OTIS GILPIN, PLAINTIFF-APPELLANT,

v.

HARRY LEV AND MID-CITY UNIFORM CAP COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. ABRAHAM L. MAROVITZ, Judge, presiding. Affirmed in part, reversed and remanded in part.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

OPINION ON REHEARING.

Otis Gilpin, the plaintiff, brought this suit to recover for personal injuries he sustained on April 1, 1952, when an auto in which he was a passenger overturned. The auto was owned by Mid-City Uniform Cap Company and was driven by the comptroller of the company, Eugene Manno. Plaintiff originally sued Manno, Harry Lev and Mid-City; however, only Lev and Mid-City were served with process and the matter was tried only as to those defendants by judge and jury.

At the close of all of the evidence the trial court directed a verdict in favor of defendant Mid-City, and the jury returned a verdict in favor of the plaintiff and against defendant Lev in the amount of $30,000. Lev filed a post-trial motion for a judgment notwithstanding the verdict which was granted by the trial court. The plaintiff appeals both from the directed verdict in favor of Mid-City and the judgment notwithstanding the verdict in favor of Lev.

The defendant Lev was the president of Mid-City, a corporation engaged in the manufacture of uniform caps. He and his wife each owned 50% of the stock of the corporation. Eugene Manno, the driver of the auto owned by Mid-City and involved in the accident, was the comptroller of the corporation during the year 1952. Though Manno testified that at the time of the accident he was no longer employed by Mid-City, the payroll records of Mid-City and the testimony of Lev show otherwise.

On March 1, 1952, a partnership agreement was entered into between Manno and Lev embracing the sale and production of oil. The name under which the business was to be conducted was "The Paramount Oil Company."

The plaintiff, in the early part of 1952, was employed by an oil company, of which he was part owner. In February of that year he was approached by Manno at his home in Benton, Illinois. Manno said that plaintiff was recommended to him by a friend and that he wanted to invest some money in oil. After several meetings, and a trip to Kentucky to look at oil wells, Manno got an option to purchase an oil lease and put down $10,000 to bind the option.

Plaintiff and Manno then went to Chicago where they met Lev. At some prior time Manno gave plaintiff a business card which showed Manno was employed by Mid-City. In Chicago, the purchase of the oil lease was discussed, and Lev told the plaintiff that he was president of Mid-City and that they were going to buy the property. They then went to a bank where Lev withdrew $100,000, gave it to Manno, and Manno and plaintiff then drove back to Kentucky in the auto owned by Mid-City. Lev gave Manno permission to use the auto for the purposes of the oil business, and also for coming back to Chicago to check on Mid-City business, since Manno was comptroller of that company. Manno purchased the oil lease in Kentucky, and plaintiff and Manno then took up lodging in Celina, Tennessee, six miles from the lease.

After they arrived in Kentucky an employment contract was entered into between plaintiff, individually, and Manno and Lev d/b/a Paramount Oil Company, under which plaintiff was to supervise and operate drilling operations, negotiate for the purchase of leases, and be responsible for the prudent management and operation of all leases belonging to the said Paramount Oil Company. The contract was to be effective as of the 1st day of March, 1952.

Manno testified that Paramount had from 3 to 5 employees on April 1, 1952, all of whom were working in Kentucky. Plaintiff, however, testified that Paramount had but one employee, a pump man named Truman Britt.

On April 1, 1952, plaintiff and Manno left on a trip from Celina, Tennessee, to Bowling Green, Kentucky, a distance of approximately 85 miles. Plaintiff testified that he had no personal reason to go to Bowling Green that night and that he had no business there in connection with his duties to the oil business. Plaintiff said that he did not know the purpose of the trip, and that Manno had asked him to go along. Manno, by a deposition read into evidence at the trial, stated that the trip had nothing to do with the business of Mid-City; the purpose of the trip was to see a lawyer named Milliken about some easement and egress contracts for Paramount Oil. Further, Manno said that he had never asked plaintiff to go along on the trip, because they always went places together.

Lev testified that he had no prior knowledge of the trip. He stated that early in 1952 he was interested in setting up a raincoat factory in Bowling Green, and that Manno, on behalf of Mid-City, had consulted an attorney named Milliken concerning the purchase of a plant.

On the trip to Bowling Green the auto overturned, allegedly through the negligence of Manno. As a result of this accident plaintiff sustained numerous injuries for which he seeks to recover damages in this action.

At the trial the defendant Lev made an offer of proof that the plaintiff had made an application for benefits under the Kentucky Workmen's Compensation Act, and that pursuant to such application the plaintiff had been paid amounts of $720 and $999.05 by the insurance carrier of Manno and Lev. This application was sworn to and signed by the plaintiff and recited that the injuries of the plaintiff had resulted "by reason of an ...


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