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Babington v. Bogdanovic

SEPTEMBER 27, 1972.




APPEAL from the Circuit Court of Sangamon County; the Hon. CREEL DOUGLASS, Judge, presiding.


Legal theories are like all of man's ideas: there are no new ones — only endless variations of old ones. And such is the case here, for it involves the question of "joint venture" — a concept of legal antiquity that has been the subject of myriad appeals here and in other jurisdictions.

Here are the essential facts:

Babington, a young school teacher, his fiancee, her parents, her brother and her sister all drove to Wisconsin for a four-day vacation. It was agreed that they would use Babington's car and that the Fishers, his future in-laws, would furnish the gas and oil. After spending three to four days in Wisconsin (swimming, water skiing, fishing and relaxing), they commenced the return journey at approximately 7:30 in the evening. Babington drove much of the night on the return trip to Menard County, Illinois, but early in the morning relinquished the driving to his future father-in-law, Fisher. Babington took the passenger side in the right-hand front seat, his fiancee sat in the middle, and all of the passengers in the car proceeded to go to sleep.

Meanwhile, a tractor-trailer flatbed loaded with hardwood, weighing approximately 70,000 pounds, and heading for St. Louis, was on the same U.S. 51 highway when it developed headlight trouble. Shortly thereafter, the unit lost all of its power and Bogdanovic (the driver) was unable to pull the rig off the highway since the shoulder was too narrow. The unit came to a stop in the southbound lane of U.S. 51, a few feet north of the Dimmick Road intersection in La Salle County, Illinois. Bogdanovic and his driving partner, Peterson, testified that the first thing they did was to put out reflector and fusee flares both in front of, and behind, the truck. Bogdanovic then went to a nearby farmhouse and called both the State police and a wrecker service, while Peterson flagged down another truck, had it park in front of the disabled unit and turn on its four-way flasher lights as a warning for north-bound traffic. Shortly thereafter, Illinois State Trooper Yerly arrived at the scene, parked his squad car on the opposite shoulder facing north, with dim lights on, and flasher lights and red rotating light in operation. Immediately upon Trooper Yerly's arrival, the truck that had been flagged down drove off and Peterson was directed by Trooper Yerly to put out a flare to the south.

But before this could be accomplished, Babington's car, driven by Fisher, came from the north at a high rate of speed. Trooper Yerly got out into the road with a five-cell flashlight and attempted to flag it down, but without success. The automobile ran into the rear end of the disabled tractor-trailer, and pushed it twenty-three feet, ten inches, to the south, at the same time leaving over 100 feet of skidmarks. Fisher was killed and all of the other occupants sustained injuries.

In the case before us, a jury returned a verdict unfavorable to Babington, and he appeals upon two grounds: (1) that the trial court erred in giving defendant's jury instructions that the passenger-driver's negligence was imputable to the owner-occupant if the jury found that a joint venture existed; and (2) that the trial court further erred in admitting into evidence a signed statement given by a witness who denied the statement in the form presented at trial, without requiring the production of the person who took the statement to prove that it was actually given as written down.

We will treat the issues as presented in inverse order, considering the last first. Upon the trial of this cause there was considerable evidence introduced by various witnesses relative to whether flares had been actually placed about the truck. Some of this testimony was contradictory. And, concededly, the issue was a material element in the trial. A Mrs. Roach testified that sometime after 2:00 A.M. she heard a crash, jumped up, called her husband, grabbed a flashlight and went out to the scene of the accident. As is pertinent to our consideration here, she testified that she observed no flares or flashers other than those on the police car. Upon cross examination by defendant, Mrs. Roach identified her signature on a signed statement, read the statement and testified that she had read it at the time she signed it. Essentially, as is relevant here, she said in the statement that the barking of the dogs woke her up at 3:00 A.M. and that she saw a pinkish-red flare burning along the west side of Route 51. She testified "That isn't all I told the gentleman * * * I said I thought I saw a flare". Upon redirect she said that the gentleman who took the statement from her, and wrote it down, gave his name at the time of the statement (about a month after the accident) but she could not remember his name, nor would she be able to identify him at the time of trial. Over objection, the court admitted the statement into evidence during the defendant's case in chief. Plaintiff contends that it is the law in Illinois that where a witness qualifies a statement given, the opposing party must call the person to whom the alleged impeaching statement was given to testify to the statement before it can be admitted into evidence.

• 1, 2 We disagree. In 1904, in the case of Illinois Central R.R. Co. v. Wade, 206 Ill. 523, 529-530, 69 N.E. 565, the Illinois Supreme Court very succinctly set forth the dominating law in this area:

"That the statements of a witness made out of court, orally or in writing, if contradictory on a material point to his sworn statement as a witness, may be introduced in evidence, not as substantive proof of the truth of such statements but as tending to discredit the witnesss, has been so frequently declared by courts and law writers and is so universally understood and accepted that the citation of authorities in support of the proposition is considered entirely unnecessary.

* * * When it is desired to impeach a witness by proof of oral statements made by him out of court contradictory upon a material point of his testimony given from the witness stand, it is requisite that a foundation for the introduction of such oral statements be made by asking the witness if he did not, at a given time and place, in the presence of specified persons, make the supposed contradictory statements; but where the supposed contradictory statements were reduced to writing by the witness, or signed by him, a sufficient foundation for the introduction of the writing is laid by showing the paper to the witness, allowing him to inspect it and to read it if he desires, and proving by him, or others, that the signature thereto is his genuine signature."

• 3 The above holding from the Wade case, in our view, continues to be the controlling law in Illinois. (Esderts v. Chicago, Rock Island & Pacific R.R. Co., 76 Ill. App.2d 210, 222 N.E.2d 117, 125; Hapke v. Brandon, 343 Ill. App. 524, 99 N.E.2d 636, 638.) In the instant case, the allegedly impeaching statement was offered and admitted at the opportune time, after a correct and proper foundation had been laid. No error.

The capstone question in this appeal, however, demands closer scrutiny. The trial court gave two instructions for the defendant on the question of "joint enterprise" — one being the definition instruction (72.04) from Illinois Pattern Jury Instructions and the other directing the jury that if it found Babington and Fisher to be engaged in a joint enterprise at the time of the accident, then any negligence by Fisher would be imputed to Babington and would be a bar to his recovery. Plaintiff claims this to be reversible error since the facts of the case do not bring it within the perimeter of "joint enterprise."

Both litigants here have cited to the court an avalanche of cases on this issue — Illinois Supreme, Illinois Appellate, Federal courts, and foreign State courts. Some courts refer to this topic under consideration as "joint enterprise", some as "joint venture", and others as "joint adventure", "imputed negligence", "business enterprise", "common business enterprise". Yet none of these phrases which denote the joint venture doctrine possess any particular magic which automatically determines its aptness. The doctrine must be applied, not in a vacuum, but with common sense and logic to a specific factual situation. From the mountain of case law in this area, both foreign and domestic, we do not ...

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