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Johnson v. Ward

JULY 6, 1972.

ARLETTA JOHNSON, PLAINTIFF-APPELLANT,

v.

EDMUND WARD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This cause of action involves a suit for personal injuries sustained by plaintiff in Wisconsin while she was a passenger in an automobile owned and operated by defendant. Plaintiff's injuries were received when the auto went out of control and off the road. The action was premised on the Wisconsin Comparative Negligence Statute, Wisc. Stats. 331.045. After a jury trial, the jury returned a verdict in favor of defendant, Edmund Ward, and the court entered judgment on the verdict. Liberty Mutual Insurance Company had been dismissed as a defendant prior to trial.

Both sides agree that at the time of trial, matters of procedure were governed by the law of the forum, Illinois, while matters of substance were controlled by the law of the place of the injury, Wisconsin. Millsap v. Central Wisconsin Motor Trans. Co., 41 Ill. App.2d 1, 189 N.E.2d 793. Since the instant trial, our Supreme Court has invoked the doctrine that the local law of the State where the injury occurred shall determine the rights and liabilities of the parties unless Illinois has a more significant relationship with the occurrence. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593.

Plaintiff's original complaint charged that defendant operated his vehicle when it was in a defective mechanical condition. Defendant moved to strike the complaint on the ground that it failed to allege that defendant had knowledge of the defect, but the motion was denied. However, at the time of trial, plaintiff withdrew her charge that the occurrence was caused by any defect in defendant's vehicle, and substituted the charge that defendant was in exclusive control of the vehicle and that the accident could not have happened without his negligence. Defendant's answer was allowed to stand to the amended complaint. That answer denied negligence with respect to the condition of the vehicle and also charged that plaintiff as a guest accepted the defects of the vehicle. In accordance with Wisconsin law, the jury was given a special verdict form. The jury found that neither of the parties were negligent and that the sole cause of the occurrence was the breaking of the A-frame, the lower control arm of the automobile rendering it uncontrollable. After verdict plaintiff raised the question of whether the pleadings sufficiently presented that issue to the jury. Although questioning the need of doing so, the trial court directed defendant to file an amended answer, setting forth that a broken A-frame in the vehicle caused the accident.

Plaintiff and her husband were the vacation guests of defendant and his wife at defendant's summer home in Devil's Lake State Park, Wisconsin. The State Park is about three miles from Baraboo, Wisconsin. Late in the afternoon of August 13, 1962, defendant, accompanied by his wife and plaintiff, was driving from Baraboo to the summer home. In the middle of a curve on the road, defendant found that he could not turn the steering wheel. Defendant recalled applying the brakes to slow the car when he became aware that it was leaving the road. The wheel was locked and the car left the road on a tangent to the curve. The vehicle turned over several times and came to rest in a culvert. A county policeman measured the skid marks at 310 feet.

Plaintiff testified that she had driven the vehicle in question on the morning of the day of the accident. She said that she was unfamiliar with the car and had stalled the engine several times, but the steering mechanism had operated normally while she drove the car. Plaintiff testified that they had consumed liquor that afternoon, but that defendant's driving ability was not impaired.

Defendant testified that he had purchased the car for $130 and that at the time of the purchase he had an auto mechanic named Nicholas Hoffman inspect the car for defects. The mechanical tightened the steering mechanism which had been loose and repaired the brakes. Prior to the accident, defendant had no difficulty with the steering. Defendant testified that he drank two bottles of beer at a tavern prior to the accident. He stated that plaintiff had made no complaints about his driving prior to the accident.

Defendant's wife testified and corroborated her husband's statement that plaintiff made no complaint about his driving. She also testified that she did not notice anything unusual about the steering prior to the accident.

Edward W. Grosshans testified for the defendant that after the accident he purchased the vehicle in question from defendant. Grosshans was in the business of storing wrecked cars and testified that he did nothing to bend or break the A-frame of the car after he purchased it. Grosshans testified that photographs showed the A-frame or suspension part of the left front wheel in an unnatural broken and bent condition.

Ralph J. Buss testified for the defendant as an expert witness. He had been an auto mechanic for 27 years and had examined the car in question. In his opinion the bent A-frame was the cause rather than the result of the accident. The damage to the A-frame was caused by stress. Buss stated that while the steering wheel turned when the vehicle rested on blocks, it was his opinion that because of the bent A-frame it would not turn while resting on the four wheels. He had examined the vehicle's brakes, and there were no defects.

Over plaintiff's objections, Raymond L. Fales was permitted to testify for defendant as an expert witness. Fales testified that defendant's failure to turn the steering wheel was caused by the collapse of the left lower control arm, the A-frame. He testified that the bending of the A-frame caused the wheels to "toe-in" which, in turn, caused the tires to "scrub" on the pavement moving the car on a tangent to the curve. In examining a photograph of the A-frame, Fales identified cracks as fatigue marks. He stated that he was an automotive engineer, not a metallurgist.

Outside the presence of the jury, both sides disclosed an unwillingness to call Gordon Myrah as a witness. At the request of defendant's insurance carrier, Myrah had made an appraisal of the damaged vehicle. The trial court offered to call Myrah as a court's witness, permitting both sides to cross-examine. The record reveals that counsel for both parties expressly agreed to this procedure. Myrah testified that the broken A-frame was the cause of the locked steering wheel and of the accident. He explained an earlier contradictory opinion by stating that at the time of his original inspection he believed that the vehicle had been involved in a collision with another vehicle.

On appeal plaintiff contends that the substantive tort law of Wisconsin was improperly applied; that the court erred in dismissing plaintiff's complaint brought directly against defendant's insurance carrier; that the trial court improperly allowed defendant to prove an affirmative defense without pleading that defense; that the trial court erred in permitting a witness to be called as the court's witness; that the court's failure to impose sanctions for defendant's abuse of discovery procedures was prejudicial; that the court erred in permitting a certain witness to testify; that the court erred in allowing defense counsel to conduct improper examination of certain witnesses; and that defense counsel made prejudicial remarks during closing argument.

• 1 Plaintiff's first contention on appeal is that Wisconsin tort law was applied improperly in the instant case. She concedes that the substantive tort law of Wisconsin was applicable, but argues that the trial court erred in the use of a Wisconsin special verdict. Under this heading, she also argues that the special verdict form used was improper because it did not permit the jury to consider the issue of defendant's negligence or his knowledge of the defect, and that the court erred in not applying the doctrine of res ipsa loquitur.

Wisconsin law provides for the doctrine of comparative negligence rather than contributory negligence. That doctrine necessitates various findings on issues of fact and requires provisions for the possible finding of relative percentages of negligence. To accomplish that purpose, Wisconsin statute provided for special verdicts. The statute, 270.27, provides in part as follows:

"The court may, and when requested by either party, before the introduction of any testimony on his behalf, shall direct the jury to find a special verdict. Such verdict shall be prepared by the court in the form of written questions, relating only to material issues of fact and ...


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