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Horst v. Morand Bros. Beverage Co.

MAY 23, 1968.

EDWARD HORST, PLAINTIFF-APPELLEE,

v.

MORAND BROTHERS BEVERAGE CO., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. ELMER N. HOLMGREN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

In this personal injury action arising from a vehicular collision, a judgment for $19,500 was entered in favor of the plaintiff, Edward Horst, at the termination of a jury trial.

On appeal the defendant, Morand Brothers Beverage Co., maintains that: (1) a verdict should have been directed in its favor; (2) the verdict was contrary to the manifest weight of the evidence; (3) improper evidence was admitted; (4) erroneous instructions were given, and (5) the verdict was the result of prejudicial argument.

About 4:00 a.m. on Monday, June 16, 1958, Horst was driving a bakery truck north on State Street in Chicago. He was on his way downtown to make deliveries for the bakery which employed him. The weather was clear, traffic was sparse, and he was travelling approximately 27 miles per hour. He had the green light as he crossed 39th Street, but halfway through the intersection his truck was struck on the left side by an auto travelling east on 39th which had ignored the red light. The collision turned the truck on its side and pushed it onto the sidewalk on the northeast corner. Horst was knocked unconscious as the truck turned over.

He was taken to a nearby hospital where first aid was administered to him. He was removed to another hospital where he was examined by his family physician and was then sent home where he spent the remainder of the week. He returned to work the following Monday, taking along his ten-year-old son to assist him with deliveries. On the same day an extremely itchy rash broke out on his legs. The condition spread and in August he was admitted to a hospital where he spent four days. He was away from work an additional two weeks at this time. By October, the rash and the swelling which accompanied it had reached such magnitude that he was forced to discontinue working. His legs and feet were so swollen that he was unable to get his shoes on. He did not return to work until March of the following year.

Between the time of the accident and December 1958 Horst visited his family doctor on approximately 33 occasions. He was also treated by a dermatologist who testified that the plaintiff's skin condition — diagnosed as erythema multiforme — could only have been caused by the accident. The plaintiff's medical expenses amounted to approximately $400 and at the time of the accident his net salary was $120 per week. All of his medical problems had abated by the time of trial.

The identity of the driver of the automobile was never ascertained. When the police arrived the driver had disappeared and ownership of the auto was traced through its license to Morand Brothers.

The defendant admitted owning the auto but denied operating it at the time of the accident. Donald Romano, Morand's general manager, testified that the car was one of five which belonged to the corporation and that it had been assigned to him for business and personal use. He denied driving the auto the morning of June 16th and said that he had no notion as to the driver's identity. He explained that two weeks before June 16th the auto had been damaged in another accident; that at his request his brother-in-law, Victor Taglia, had taken the car to a friend named Richard Edwards, who was a used car dealer; that Edwards turned the auto over to someone else to be repaired, and that the next time he saw it was after June 16th. He said that this was the only time a car owned by Morand Brothers had been repaired through Edwards; that this was done after he had made out a report of the accident for Morand's insurance company; that the agent of the insurance company gave him permission to have the car repaired by Edwards; that he chose Edwards because of the high quality of his repair work and his cheaper price, and that he thought he would thus save money for the insurance company.

Taglia testified that he received the auto from Romano, turned it over to Edwards who operated a used car lot and repaired automobiles, and that he did not see it again until after the 16th of June.

In rebuttal, the plaintiff called the claims manager of the insurance company to whom Romano said he had reported the accident. The claims manager stated there was no record of an accident prior to June 16, 1958, in the company's files. The plaintiff also called as a witness the claim agent who Romano testified had given him permission to have the auto repaired by Edwards. The agent said that he had no recollection of an accident being reported by Morand Brothers before June 16th and that his records did not contain a report of such an accident.

[1-8] In order for the owner of a motor vehicle to be held liable for the negligent operation of the vehicle by another it must be shown that the relationship of principal and agent existed between the owner and the driver at the time of the negligent operation. Once ownership is established, a presumption or inference arises that the vehicle was being operated by the owner's agent and a prima facie case for recovery has been made. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804 (1956); Watt v. Yellow Cab Co., 347 Ill. App. 307, 106 N.E.2d 760 (1952). The presumption is rebuttable and shifts the burden of going forward with the evidence to meet the presumption upon the owner. McElroy v. Force, 38 Ill.2d 528, 232 N.E.2d 708 (1967). If evidence is introduced to show non-agency the presumption may be dispelled. If the presumption is overcome, the overall burden of proving agency remains with the party who asserted it. Brill v. Davajon, 51 Ill. App.2d 445, 201 N.E.2d 253 (1964). The weight to be given the presumption, whether it has been overcome, and whether agency has been proved are, ordinarily, questions for the trier of fact.

The defendant admits that, because of the presumption, the plaintiff made out a prima facie case of agency but argues that the presumption disappeared when its witnesses testified; that after Romano explained the circumstances surrounding his nonpossession and control of the auto it became incumbent upon the plaintiff to prove that the driver of the auto was an agent of the defendant, and since the plaintiff did not do so, this essential element of his cause of action was lacking and a verdict should have been directed against him.

In support of this contention the defendant refers to the language of Paulsen v. Cochfield, 278 Ill. App. 596 (1935), wherein it was stated:

"The testimony of one uncontradicted and unimpeached witness tending to overcome a prima facie case cannot be ignored by the court or jury, unless such testimony from its nature is not credible. . . . A prima facie case, based solely on an inference, or presumption, does not preclude the ...


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