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Freehill v. Dewitt County Service Co.

JULY 13, 1970.




Appeal from the Circuit Court of DeWitt County; the Hon. WILLIAM C. CALVIN, Judge, presiding. Reversed and remanded for new trial on the issue of damages only with instructions to enter judgment in favor of plaintiff on the issue of liability.


Rehearing denied August 18, 1970.

This is an appeal from a judgment of $26,000 entered on a jury verdict in favor of Audrey A. Freehill as executor of the estate of Emmett J. Freehill, deceased, her husband, for his wrongful death, and in favor of Audrey A. Freehill, individually, for funeral care of her husband under the Family Expense Act (Ill Rev Stats 1967, c 68, § 15).

Plaintiff's husband was driving a pickup truck in an easterly direction on Route 54 approximately three miles west of Clinton when a collision occurred between his truck and a fertilizer-spreader of defendant, De Witt County Service Company, being towed in a westerly direction on such highway behind a one-ton International flatbed truck of that company driven by its employee, Duane Jackson.

Plaintiff claimed that defendant was guilty of negligence in failing to equip the trailer (spreader) with safety chains and in failing to securely hitch the trailer (spreader). Initially, both Jackson, the driver of the truck to which the spreader was hitched, and the owner, De Witt County Service Company, a corporation, were defendants. Prior to trial, the driver was dismissed as a defendant.

The spreader was a wagon or box-like body container on wheels and was attached to the hitch of the International truck by a pin with a safety latch. It was filled with bulk fertilizer and taken to the farm where the fertilizer was applied to the soil. The spreader had been clogging and not applying fertilizer evenly so that, at the time of the collision, it was being taken to Clinton to exchange for another.

The point of impact of the collision was in dispute. Jackson, the driver of the truck and spreader, testified that he was traveling approximately forty-five miles per hour as he approached the Freehill pickup and was completely within his lane of traffic. He further testified that he observed the Freehill truck generally as it approached from the opposite direction and passed him; that he didn't notice anything unusual about the driving of that truck; that he heard the "thud," checked out of his left-side mirror and saw the pickup truck broadside in the road and the spreader going down the ditch on the north side of the road. Jackson and Freehill were the drivers of the respective vehicles and both were alone. Freehill was pronounced dead on arrival at the hospital. There were no other witnesses to the collision.

Several witnesses testified to debris scattered about the pavement and gouge marks on the pavement. The witnesses were not in agreement on the exact location of the debris with reference to the center line of the road.

Defendant's driver, Jackson, testified that he hooked up the spreader as he was leaving the farm; that he fastened the safety latch or hook to the pin; and that this was standard operating procedure. Jackson, a deputy sheriff and a State trooper testified that the safety pin was in the tongue of the spreader when they first observed it following the accident. Several witnesses testified that after the collision the hitch on the truck was damaged, had a break in its upper-right portion and was twisted.

Frank J. Martens, a State policeman for about fifteen and one-half years, was called as a witness by defendant. He testified that he arrived at the scene of the accident approximately one hour after it occurred, and that the vehicles were still located at the scene. He further testified to having investigated approximately four hundred accidents during his employment as a State trooper and that his duties included traffic enforcement, accident investigation and criminal investigation. He made observations at the scene of the accident as to location of the vehicles after the accident, marks on the pavement and the damaged condition of the hitch. Also, he testified to measurements of marks and vehicle locations he made at the scene. He was asked, based upon his investigation and experience as a State trooper investigating approximately four hundred accidents, whether he had an opinion as to which lane the impact between the Freehill truck and defendant's fertilizer-spreader occurred in. Upon objection by plaintiff's counsel, he was not permitted to answer.

Motions for directed verdict at the close of plaintiff's evidence and at the close of all the evidence were denied. The jury returned a verdict in favor of plaintiff for $26,000 and judgment was entered on the verdict. Defendant filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. That motion was denied.

Defendant now assigns as reversible error numerous grounds, including failure to permit the introduction of certain evidence, permission of the introduction of improper evidence and improper instruction to the jury.

Defendant contends that it was error for the court to refuse to submit to the jury a special interrogatory on whether Duane Jackson, defendant's driver, was guilty of negligence which proximately contributed to the damages sustained since plaintiff's theory of liability was upon the doctrine of respondeat superior and there were instructions given on that theory. It contends that defendant could not be liable unless its driver was guilty of negligence; that this was a material ultimate fact which would control the verdict as a matter of law; and that under section 65 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 65), the court has no discretion to refuse a request for the giving of a special interrogatory on a material ultimate fact.

Special interrogatories are used for the purpose of testing a general verdict against a jury's conclusion as to the ultimate controlling facts. Wise v. Wise, 22 Ill. App.2d 54, 159 N.E.2d 500 (4th Dist 1959). However, for a special interrogatory to be proper, the answer responsive thereto must be inconsistent with some general verdict that might be returned. King v. Ryman, 5 Ill. App.2d 484, 125 N.E.2d 840 (2nd Dist 1955); Rice v. Gulf, Mobile & O.R., 84 Ill. App.2d 163, 228 N.E.2d 162 (1st Dist 1967). In the state of the record in this case the answer to the tendered special interrogatory would not necessarily control on the ultimate genuine ...

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