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Guenther v. Hawthorn Mellody

MARCH 14, 1975.

ARTHUR C. GUENTHER, PLAINTIFF-APPELLANT,

v.

HAWTHORN MELLODY, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 17, 1975.

Plaintiff appeals from a judgment in favor of defendant in a personal injury action. On appeal he contends: (1) that the trial court erred in denying his motion for judgment notwithstanding the verdict, (2) that the jury's verdict was against the manifest weight of the evidence, (3) that the trial court erred in admitting evidence of earnings from his partnership, and (4) that the trial court erred in refusing to permit him to show his permanent loss of earnings over his entire life.

At trial the following evidence pertinent to the appeal was adduced.

For the plaintiff:

Arthur Guenther on his own behalf

He is 55 years old and a partner in a business selling fertilizer, hay, grain and feed which employed five persons full time. His duties included soliciting business, driving a semi-trailer truck to Wisconsin and Indiana to pick up purchases, loading and unloading the truck, helping in maintenance of the trucks, and other minor duties.

On August 26, 1968, he and his son drove to the defendant's farm in Libertyville to make a delivery. On their arrival he saw Glen Konow, defendant's manager who instructed him to place the hay on the east side of the second floor of the barn through the middle door. He moved his truck to a position under this door and went into the barn and up the stairs into the hayloft. The hayloft is an area approximately 120 X 80 feet and has several openings or chutes in the floor through which hay can be pushed to the animals on the floor below. These chutes were either clearly visible or surrounded by guard rails for protection. The floor was covered practically solid by chaff, sometimes up to 6 inches deep and it was hard to see the floor or its condition.

He and his son started dragging the elevator which weighed 350 pounds across the loft from the west side to the east side. The elevator was used to carry the hay bales up to the hayloft area.

After dragging it to within 6 feet of the middle door they set it down to take a rest. Plaintiff took a step back and fell through the floor of the loft, landing on the ground floor 12 feet below the loft. Paul Kottke was the first person to reach him after the fall. Plaintiff had severe pain and was covered by hay and chaff.

He was hospitalized for several weeks and incurred medical bills of approximately $2,800 including out-patient treatment. He returned to work on a limited basis in January, 1969, working only about 2 hours per day. Later he gradually increased this to 5 hours per day. He was not able to perform many of his prior duties including loading and unloading of the trucks and driving the semi-trailers for pick ups and deliveries.

He testified that his services to the partnership were worth approximately $10,000 per year before the accident, but afterwards were worth only $5,000 per year. On cross-examination, he testified that his profits from the partnership as reported on his income tax returns were $7,500 in 1966, $9,100 in 1967, $10,200 in 1968, $10,960 in 1969, $12,900 in 1970, $13,400 in 1971, and $17,600 in 1972.

Gerald Guenther

In addition to corroborating his father's testimony he testified that after his father fell, he went down to the ground floor. He looked up at the loft ceiling and noticed braces which formed a rectangular opening of about 3 feet by 4 feet in size. Surface material from the ceiling was hanging down through the hole. Old broken boards ...


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