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Hedrich v. Borden Co.

OCTOBER 14, 1968.




Appeal from the Circuit Court of Cook County; the Hon. SIGMUND J. STEFANOWICZ, Judge, presiding. Affirmed upon filing remittitur within twenty days; otherwise reversed and remanded.


Plaintiff brought this action to recover damages for personal injuries sustained on December 1, 1964, when a truck owned by the defendant Borden Company and operated by defendant Angelo A. Accurso, struck him while he was standing in the front entranceway of a Woolworth's store on the Southeast corner of Milwaukee and Ainslie Avenues in the City of Chicago. After a trial before a jury, plaintiff recovered a $175,000 verdict against both defendants. Judgment was entered on the verdict and the post-trial motion of the defendants was denied. This appeal is prosecuted from the entry of the judgment and the overruling of the post-trial motion. No questions are raised on the pleadings.

Three principal points are raised on this appeal. First, Borden argues that its relationship with Accurso was that of principal-independent contractor and not that of master-servant, and consequently the verdict against Borden should be reversed. Secondly, both defendants argue that the jury's verdict was so unreasonable and palpably excessive under the record as to require a new trial. Finally, both defendants argue certain trial errors with respect to improper questioning of plaintiff regarding his family status, the introduction into evidence of colored photographs of the plaintiff's injury, and alleged misconduct by plaintiff's counsel which was calculated to appeal to the passion and prejudice of the jury.

The facts relating to the accident are relatively simple. An independent witness testified she was waiting for a green light at the Northeast corner of Ainslie and Milwaukee Avenues when she observed a black car and a Borden truck, both traveling very fast, proceeding northbound on Milwaukee Avenue. It is undisputed that Accurso was driving the Borden truck. As the traffic light at the corner changed from green to red for northbound Milwaukee Avenue traffic, the two vehicles attempted to stop. The Borden truck, in attempting to avoid hitting the rear of the black car, turned towards the curb and traveled onto the sidewalk. The black car sped away, and its operator and owner remain unknown. Plaintiff, who was waiting in front of the Woolworth store on the Southeast corner of Milwaukee and Ainslie, heard the screech of the truck's brakes and attempted to jump out of the way as the truck came up onto the sidewalk. His attempt to avoid being hit by the truck was unsuccessful, and his left foot was struck by the front portion of the truck, knocking his shoe off. Defendant Accurso, called as a witness by plaintiff under section 60 of the Civil Practice Act, Ill Rev Stats (1965), c 110, § 60, testified that he was traveling North on Milwaukee Avenue when a black car began to pass him on the left. The car then began to cut the truck off by pulling back in front of the truck, and then, in an attempt to stop for the red light, abruptly applied his brakes. In an effort to avoid hitting the black car, Accurso swung the truck to the right but was unable to avoid going up on the sidewalk. The truck went over the curb and into the entrance of the Woolworth store.

Plaintiff sustained a comminuted compound fracture of the os calcis of his left foot. The dislocation tended to crush all of the soft tissue and there was an evulsion of the skin. In addition to the surgical procedures to reset the bones, certain dead skin was denuded, and later skin grafts in the area were attempted. Plaintiff developed a bone infection known as osteomyelitis and ran a fever for a period of approximately five weeks. There has been a certain amount of deformity to the foot and loss of size in the left leg. Plaintiff still suffers pain, and when standing on his foot for a period of time it begins to swell. Medical testimony indicated that this swelling condition and the intermittent pain was a permanent condition. Plaintiff walks with a slight limp and possible future surgery has not been recommended, due to the fact that the heel had a good solid boney union and the skin grafts had taken as well as could be reasonably expected.

No question is raised on this appeal with respect to the propriety of the jury's finding that defendant Accurso acted in a negligent manner in driving the Borden truck up onto the sidewalk and striking the plaintiff. The testimony of the independent witness and the defendant Accurso in describing the way the accident occurred was resolved by the jury in favor of the plaintiff, and the record amply supports the jury's verdict.

The facts relating to Accurso's employment status with Borden were testified to by Accurso and Clarence T. Sorenson, the sales manager from Borden's pursuant to section 60 of the Civil Practice Act, Ill Rev Stats (1965), c 110, § 60. The testimony of Accurso was substantially as follows: that at the time of the accident, the truck Accurso was driving was loaded with milk which he was delivering to various customers. The truck belonged to Borden, was stored on Borden's private premises when not in use, and painted on the side of the truck was the legend "Permit No. 3." This number was the permit issued by the City of Chicago to Borden Company on their request and application for such permit. Accurso also had a milk permit number of his own which was painted on his own truck. The rules of the Chicago Health Department require all milk vending trucks to display the permit number of the vendor on the side of the truck. (Municipal Code of Chicago, c 154, § 8.) Accurso was aware of this ordinance, but did not indicate his permit number on the side of the Borden truck. The reason Accurso was not driving his own truck was that it was out of service, and according to his own testimony, "not worth fixing up." He had been driving the Borden truck for approximately one and one-half months, apparently at no cost to him, since Borden Company handled all servicing and maintenance that would be required on the truck. Accurso abided by all Borden Company rules concerning the operation of Borden trucks. Prior to vending milk for Borden Company, Accurso had dispensed milk for another company. However, his relationship with Borden has been the same since he first started with them in March, 1963, up to the present time and Borden was the only company for whom he was delivering milk. From time to time Borden would give him new customers to serve, to whom he promptly attended. Accurso frequently made collections for Borden, and all checks and monies received from customers payable to Borden Company were promptly turned over to it. Sorenson, Borden's sales manager, testified that there was a company rule requiring any person driving a company vehicle who was involved in an accident with that vehicle to report such accident to the company. In accordance with this rule, Accurso notified Borden immediately of the accident he had with plaintiff. Accurso was a member of the Milk Drivers' Union, Local 753, and paid his regular union dues to such union. The president of the Milk Drivers' Union, Local 753, testified that a contract between the Union and Borden Company was entered into on behalf of all of the members of the Union, including those persons who were designated as "vendors." Accurso admitted that the Union negotiated working conditions for him with the Borden Company. The sales manager, Sorenson, testified that he was not totally familiar with the contract between the Union and Borden's, but stated that certain portions of the contract did apply to vendors. Over defendant's objection, the contract was introduced into evidence. Borden paid Accurso $102 monthly pursuant to the Union contract as compensation for advertising Borden products. Borden also made contributions to the Union Welfare Fund on behalf of Accurso. The remaining portion of Accurso's obligations to the Union Welfare Fund came out of his union dues.

Appellant Borden Company contends that Accurso was not its agent or employee, but rather a self-employed milk vendor who had business dealings with the Borden Company. Borden also contended that the allegation of agency made by the plaintiff in his pleadings, and the evidence adduced at the trial, does not reveal any competent evidence to sustain such allegations, as the evidence as to ownership of the truck, permit number, filing of the accident report, repair and storage of the vehicle, collection of monies and checks by Accurso for Borden Company merely created a procedural presumption of agency, which in fact was rebutted by the testimony of Accurso and Mr. Sorenson, sales manager of the Borden Company. Borden insists that nowhere in the record is there any evidence indicating that the Borden Company had a right to control or direct the activities of Accurso.

Once the ownership of the truck in question had been established, a presumption arose that the vehicle was being operated by the owner's agent, and a prima facie case for recovery had been made. However, plaintiff did not rely solely upon a procedural presumption of agency between Accurso and the Borden Company. Plaintiff went beyond the mere establishing of the ownership of the truck; he established that Accurso was a collection agent for Borden; that he used Borden's equipment, at no expense to him, for deliveries of milk to customers; that he abided by the rules of the Borden Company concerning accident reports, repairs and storage of the Borden vehicle; that Accurso maintained exclusive dealings with the Borden Company; that his delivery activities were conducted over a regular route; and that Borden exercised some control over him in the transaction of several of the typical duties a Borden Company employee would ordinarily perform. The presumption of agency was not rebutted or destroyed by the contravening evidence of Accurso and Sorenson, and the weight to be given the presumption, whether it had been overcome, and whether the agency had been proved were, ordinarily, questions for the trier of fact. It is obvious from the evidence introduced at the trial that plaintiff did not rely solely upon the procedural presumption of agency created by the fact that Accurso was driving Borden's truck in connection with the delivery of milk. It is evident from the record that there was an intent on the part of Accurso to serve the interests of the Borden Company as well as his own interests in the business arrangement the two parties had established. In the case of Bristol & Gale Co. v. Industrial Commission, 292 Ill. 16, 126 NE 599 (1920), the court stated:

It is impossible to lay down a rule by which the status of a person performing a service for another can be definitely fixed as an employee or as an independent contractor. Ordinarily no single feature of the relation is determinative but all must be considered together.

Courts are in agreement that the presence in any given case of one or more of the recognized indicia of the status of independent contractor is not necessarily conclusive and that there is no absolute rule for determining whether one is an independent contractor or a servant, but that each case must be determined on its own facts. In Gomillion v. Forsythe, 218 S.C. 211, 62 S.E.2d 297 (1950), the court stated that ownership of the motor truck and maintenance of such truck by the milk distributing company for the use of Mr. Bell, the truck driver, was a circumstance to be considered by the jury, along with all other evidence in the case, in determining whether Mr. Bell was an independent contractor or a servant of the milk distributing company. (See annotation in 53 ALR2d 183 (1957), for a discussion of cases concerning route drivers as independent contractor or employee for purposes of the respondeat superior doctrine.)

[5-7] Defendants maintain that Trzaska v. Bigane, 325 Ill. App. 528, 60 N.E.2d 264 (1945), is authority for the proposition that the activities of Accurso were that of an independent contractor. The Trzaska case is readily distinguishable from the instant case in that in Trzaska, the purported agent, Buchunas, owned his own truck which was used to make all deliveries, obtained the license for it, paid for its upkeep, fuel and maintenance, made deliveries for his purported employer only when requested by them to do so, collected money only when requested by them to do so, was free to take a load or not as he pleased, and was also in business for himself delivering coal, and had made deliveries for other dealers during a two-year period while also making deliveries for his purported employer. The court in Trzaska held that Buchunas was an independent contractor, and not an employee. Considering all the elements and activities of Accurso with the Borden Company, we are of the opinion that the issue of agency was legitimately submitted to the jury and was properly resolved. "Unless the relationship is so clear as to be undisputed, the relationship between principal and ...

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