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Korleski v. Needham

DECEMBER 20, 1966.




Appeal from the Circuit Court of Boone County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment adverse to corporate defendant affirmed.


This appeal is prosecuted from a judgment against the defendant, Shaw-Barton Company, Inc., a corporation, in the amount of $25,000, entered on a jury verdict, for personal injuries and property damage suffered by the plaintiff, Edwin Korleski, as a result of an accident allegedly caused by an agent of the defendant during the course of his employment.

The complaint, filed August 22, 1963, originally contained two counts. Count I was against Lorraine Needham, as Administrator of the Estate of Harold E. Needham, deceased, and charged that as a direct and proximate result of the careless and negligent conduct of Harold E. Needham a collision occurred between an automobile driven by Needham and one driven by the plaintiff. The alleged negligence of Needham was specified as failure to maintain a proper lookout for plaintiff's automobile; operation of his auto at a high and dangerous rate of speed; and violation of sections 70 and 86 of the Uniform Act Regulating Traffic on Highways in that he failed to obey a stop sign at the intersection where the collision occurred.

Count II repeated the allegations of Count I and further charged that at the time of the collision Needham was "then and there in the employ of the defendant, Shaw-Barton Company, Inc., a corporation, as its agent, servant or employee and at the time of the occurrence herein complained of, said Harold E. Needham was in the course of his employment as such agent, servant or employee. . . ."

Both counts alleged plaintiff's freedom from contributory negligence, pain and suffering, permanent and lasting personal injuries, loss of profits, and sizable obligations for medical care and attention, and prayed for judgment in the amount of $50,000 against each defendant.

Count I was dismissed before trial as a result of an apparent settlement with that defendant and does not concern us here. Shaw-Barton filed an answer to Count II that contained a general denial and a further allegation that the negligence that caused the accident, if any, was on the part of the plaintiff or "some third person, firm, or corporation, their agents, servants or employees, over whom defendant had no control . . ." The plaintiff filed a formal reply to this answer that denied the additional allegations.

On June 4, 1965, pursuant to order of court, the complaint was amended to include a Count III against Shaw-Barton that repeated the allegations of the earlier pleadings and added a paragraph in regard to property damage to Korleski's car. On June 8, 1965, Shaw-Barton filed an answer to the new Count that contained a further allegation identical to that used against Count II. No reply to this answer was filed until July 30, 1965, several weeks after the trial.

The record indicates that the accident occurred at approximately 7:10 p.m. on November 8, 1962, at the intersection of Belvidere Road and White Pigeon Road in Boone County. The plaintiff was traveling in a northwesterly direction on Belvidere Road on his way home to Rockton from Sycamore. He was driving about 50 to 55 miles per hour, or about 10 miles below the posted speed limit. The road was clear and dry. When he was approximately 60 to 70 feet from the intersection of White Pigeon Road, he noticed dim lights to his left. White Pigeon Road intersects Belvidere Road on a diagonal at this point and continues in a northeasterly direction. The next thing that the plaintiff remembered was that Needham's car was directly in front of him and the collision occurred. Photographic exhibits, introduced by the defendant during cross-examination, and the testimony of the plaintiff, indicate that there were stop signs on White Pigeon Road on both sides of its intersection with Belvidere. There were no stop signs for traffic on Belvidere itself. The plaintiff also stated that he heard no horn or other warning; that Needham's car was traveling about eighty miles an hour at the time of the impact; and that it had not stopped at the intersection. After the collision, Needham's car continued for 87 feet and sheared off the stop sign on the opposite side of the road. Needham died in an ambulance shortly after the accident.

Three doctors testified for the plaintiff relative to his injuries. Korleski himself was the only other witness to testify. The defendant rested at the conclusion of plaintiff's case and offered no witnesses of its own.

The defendant bases this appeal on seventeen separate instances of reversible error on the part of the trial court. However, many of the instances of alleged error, if not all, are predicated on the points herein discussed so that the essence of this appeal can be considerably shortened. Defendant first urges that the trial court committed fatal error in its denial of its motion for a directed verdict at the conclusion of the evidence and to arrest judgment since neither the pleadings or evidence was sufficient to sustain the verdict. In our consideration of this point, it would be appropriate to also examine defendant's contention that a certain settlement contract between Shaw-Barton and the Estate of its deceased employee, Needham, was improperly admitted into evidence.

At the very outset of the trial, over the repeated objections of defendant, the trial court admitted into evidence for the purpose of proving an admission against interest on the part of Shaw-Barton, an Industrial Commission of Illinois Settlement Contract between Lorraine E. Needham as widow of Harold E. Needham, deceased, Petitioner, and Shaw-Barton, Inc., Respondent, and approved by the Commission on February 14, 1964. That contract recited, in part, as follows:

"That on the 8th day of November, 1962, Harold E. Needham of 330 Highland Avenue, Algonquin, Illinois, was killed in an accident that arose out of and while in the employment of Shaw-Barton, Inc. . ."

The defendant contends that the admission of that document was improper since it did not constitute an admission against interest. We do not agree with this contention.

Any statement, oral or written, voluntarily made by a party to an action that contradicts the position taken by that party may be introduced into evidence as an admission against interest if it is pertinent to the issues of the case. Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 115, 199 N.E.2d 769 (1965); ...

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