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Redmon v. Sooter

SEPTEMBER 20, 1971.

GILBERT REDMON, PLAINTIFF-APPELLEE,

v.

MICHAEL JAMES SOOTER, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Winnebago County; the Hon. WILLIAM ROGER NASH, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 3, 1971.

This is an appeal from a judgment in favor of the plaintiff, Gilbert Redmon, and against the defendants, Michael James Sooter and Green Giant Company, a foreign corporation, in the amount of $70,000.00. The Jury answered a special interrogatory that Sooter was the agent of Green Giant and rendered a general verdict against both defendants jointly for $70,000.00. A post trial motion to vacate the judgment; to set aside the verdict; for judgment notwithstanding the verdict and for a new trial was denied.

A two-count complaint was filed by plaintiff on October 28, 1969. In Count 1 of the complaint, it was alleged that as a direct and proximate result of the negligent operation of a 1960 Ford truck by defendant, Michael James Sooter, there was a collision between that truck and a 1965 Dodge truck owned and driven by plaintiff.

Count II was against Green Giant Company. The allegations of Count 1 were repeated therein and in addition, it was alleged that at the time of the collision Michael James Sooter was an employee of the defendant, Green Giant Company.

Defendants filed a motion to dismiss on the ground that plaintiff had previously elected his remedy under the Workmen's Compensation Act by filing a verified application with the Industrial Commission setting forth that the injuries alleged were received while plaintiff was an employee of Green Giant Company within the definition of the Statute. The motion was denied, and the defendants then filed their affirmative defense based on the same grounds. Plaintiff's reply denied the material allegations of the affirmative defense and denied that the allegations therein constituted a defense.

The record indicates that the plaintiff, Gilbert Redmon, was the owner of, and was driving his Dodge truck, loaded with sweet corn, in an easterly direction on Route 20. He testified that he had hauled corn, oats and beans for the Paw Paw Cooperative Grain Co. until about June 1, 1969, when he applied to Green Giant Co. to haul peas and corn for them. He did this until August 31, 1969, the date of the collision.

The defendant, Michael Sooter, was driving a truck northbound on Winnebago Road, carrying a gross weight of 25,000 lbs. The truck was owned by Gerald Marrs and leased to the Green Giant Company.

The collision occurred in the intersection of Route 20, and Winnebago Road. Plaintiff testified that he was hired to haul for the Green Giant Co.; that he furnished the truck and the driver (himself); that he paid his own expenses (i.e. gas, oil, maintenance, insurance, etc.); and that he was paid by Green Giant Co. with two checks — one for his truck and one for himself.

Defendant testified that he was hired as a seasonal employee by Green Giant Co., that he attended a class in May, 1969, for those who did not have a chauffeur's license. This was at the request of Green Giant Co., and in May, 1969, he was assigned to drive the Marrs vehicle. He had no ownership interest whatsoever in the Marrs truck, did not pay for any maintenance, and received his pay check from Green Giant Co. Mr. Sooter further testified that a couple of days prior to the accident he told the plaintiff he had noticed his brakes were "different." Between that time and the accident, the brakes operated properly. As he approached the intersection, northbound on Winnebago Road, he applied his brakes 300 to 400 feet south of the intersection but passed completely through the stop sign at the intersection onto Route 20 without stopping. He first noticed the Redmon truck when it was to his left — "to the west" about 100 to 200 feet away. The impact took place right in the intersection, and the front end of Redmon's vehicle struck the truck driven by Sooter just behind the cab. Skid marks were left by the Redmon truck, but none by the Sooter driven vehicle. He testified that Mr. Redmon could not get out of his truck; Mr. Sooter was not injured and continued to work.

The plaintiff further testified that he never told anyone he was an employee of Green Giant Co. during the summer of 1969. Defendant attempted to introduce defendant's exhibit No. 3, which was a certified copy of plaintiff's application for adjustment of claim before the Industrial Commission, signed by both, the plaintiff, Mr. Redmon, and his attorney. The application states that Mr. Redmon, the plaintiff in this case, was injured while driving a truck for Green Giant Co. in the course of his employment by Green Giant. The court refused to admit the said application into evidence.

Dr. Fancsali, the treating physician, testified as to plaintiff's injuries and stated that plaintiff suffered a heart contusion for which he was treated by Dr. Keith Wrage; that in addition he suffered a cerebral concussion, abrasions and contusions about the face; a puncture wound of the right knee; a fracture of the right tibia, compound and comminuted, and a fracture of the right fibula. Dr. Fancsali also testified that plaintiff's fracture extended into the knee joint, that such a fracture decreases the function of the knee motion, that range of motion was still limited, and that the patient had soreness.

The doctor further testified that the plaintiff had fracture lines extending into a major weightbearing knee joint; that there would be an increase in wear and tear; and that based on past experience and history, arthritis would most certainly develop. He stated that if arthritis that is incapacitating develops, it may be necessary to perform a surgical procedure to relieve the pain or to regain motion if stiffness develops. The doctor further testified that the present limitation of motion in the knee could become a permanent condition and that Mr. Redmon could continue to have pain and suffering from the condition of the injuries received in the accident. Further, he testified that at the time of the trial the x-rays revealed near healing of the fractures; that the x-rays showed some minimal pre-existing hyper tropic arthritis in the lumbar spine; that there was some atrophy in the muscle of the right leg, and that Mr. Redmon was partially disabled for his regular occupation as a truck driver and it was hard to say how long this would continue.

Defendant now assigns as reversible error various grounds including four principal points. We discuss first, defendant's claim that exclusion from evidence of plaintiff's application for benefits to the ...


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