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Greig v. Griffel





APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, and the Hon. HARRY D. STROUSE, JR., Judges, presiding. MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

This case arises out of a collision which occurred in the early morning hours before dawn on November 22, 1971. Plaintiff Richard Greig, was driving his pickup truck in a westerly direction on Route 173 in Lake County, Illinois. The collision occurred when plaintiff ran into the rear of a semi-trailer dump truck which had also been proceeding in a westerly direction on Route 173 and which was either in the process of making or about to make a left turn off of Route 173 into a parking lot at the Thelen's gravel pit. The dump truck was driven by defendant John Griffel who was the agent and employee of defendant Dan Lodesky Trucking, Inc. The main disputed issue in the case is whether or not the dump truck was properly lighted and whether defendant properly signaled the intention to make a left turn. In a two count complaint alleging both negligence and wilful and wanton misconduct, the plaintiff sued for property damage and personal injuries sustained as a result of the collision. The jury returned a verdict in favor of the plaintiff in the amount of $25,900. The defendants have appealed on numerous grounds.

The first issue raised by defendant Dan Lodesky Trucking, Inc., is that plaintiff's claim was barred for failure to file the action against it within the two years allowed by the applicable statute of limitations. The plaintiff asserts that the claim against the corporation is not barred because he comes within the requirements of section 46 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46(4)). Although section 46(4) sets forth five requirements for bringing in a person as a defendant after the normal statute of limitations has run, the only requirement which is in dispute herein is whether the plaintiff met requirement "(b) failure to join the person as a defendant was inadvertent." The trial court denied the corporate defendant's motion to dismiss the complaint and also denied the post-trial motion which raised the issue again. In determining whether the failure to join the corporation until after the statute of limitations had run was inadvertent, the following chronology will be helpful.

November 22, 1971 — Date of Accident.

February 3, 1972 — original complaint filed naming John M. Griffel and Dan Lodesky as defendants.

March 6, 1972 — both named defendants file a joint answer which admits that John M. Griffel was driving the dump truck in question but denies all other relevant allegations as to Griffel's status as a duly authorized agent, servant and employee of Lodesky and all allegations going to ownership of the vehicle.

October 10, 1972 — both defendants given leave to file answers to interrogatories instanter; answers filed only by Griffel. They disclose that he was not the owner of the vehicle involved in the occurrence and in response to a request for the names and addresses of all persons not previously listed who had knowledge of the facts of the occurrence of any injuries or damages therefrom stated, "None." So far as we are able to discover, defendant Dan Lodesky never filed any answers to the interrogatories.

October 8, 1973 — discovery deposition of defendant Griffel taken. The deposition contains references to "Dan Lodesky Trucking" several times and one reference to "Lodesky Trucking Company."

November 22, 1973-2-year statute of limitations runs.

June 18, 1974 — plaintiff granted leave to file amended complaint joining Dan Lodesky Trucking, Inc., as an additional party defendant and amended complaint filed. The motion was supported by a memorandum and affidavits from both the plaintiff and plaintiff's newly engaged attorney to the effect that neither was aware of the fact that Dan Lodesky Trucking, Inc. was the owner of the vehicle involved in the collision with the plaintiff before May 30, 1974.

The corporate defendant argues that by virtue of the original answer filed in March 1972 and the answers to interrogatories filed thereafter, the plaintiff knew or should have known that Dan Lodesky was not the owner of the dump truck for over a year before the statute of limitations ran. It further argues that even if plaintiff did not know earlier, he should have known as a result of the discovery deposition of Griffel which was taken shortly before the statute of limitations ran. In addition, defendant points to the sheriff's traffic accident report which listed the owner of the vehicle as being "Dan Lodesky (Trucking)."

• 1 One of the earliest cases interpreting the inadvertence requirement of section 46(4)(b) adopted as the meaning of the word "inadvertent" — "Not turning the mind to a matter; heedless; negligent; inattentive; * * *." (Silver v. Lee Shell Equipment Corp. (1961), 31 Ill. App.2d 266, 269, 175 N.E.2d 287, 289.) This definition has been consistently followed in the later cases. (See, e.g., Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App.2d 161, 266 N.E.2d 343; Paku v. M.V. Leasing Corp. (1971), 2 Ill. App.3d 742, 277 N.E.2d 335.) We note also that a plaintiff who comes within the provisions of the act should be given a reasonable period within which to take steps to add the proper parties after receiving knowledge of their existence (Fields v. 6125 Indiana Ave. Apartments, Inc. (1964), 47 Ill. App.2d 55, 196 N.E.2d 485), but that the statute was not intended to include within the purview of the word "inadvertence" excusable failure to act after the true facts were discovered. Robinson v. Chicago National Bank (1961), 32 Ill. App.2d 55, 176 N.E.2d 659.

We have examined the cases cited by the parties herein as well as numerous others and have found no case directly deciding the issue herein. We note initially that this is not a case in which plaintiff had actual knowledge of the existence of the corporate defendant before the statute of limitations ran. (See, e.g., Paku v. M.V. Leasing Corp.; Horan v. Brenner (1965), 57 Ill. App.2d 83, 206 N.E.2d 488; Solone v. Reck (1965), 55 Ill. App.2d 282, 204 N.E.2d 614; Robinson v. Chicago National Bank.) To the contrary, both the affidavits of plaintiff and plaintiff's attorney indicate no actual knowledge until shortly before the amended complaint was filed. On the other hand, this is not a case wherein the actions of the defendants were aimed at actually covering up and secreting from the plaintiff the names and identities of the true defendants. (See, e.g., Bates v. Wagon Wheel Country Club, Inc.; Cody v. Ladurini (1969), 109 Ill. App.2d 116, 249 N.E.2d 315.) While the corporate defendant is perhaps correct in asserting that it has no duty to inform plaintiff of the correct defendant, we cannot agree with their assertion that it would have been improper for them to do so. Rather, we point out that it has certainly been common practice for defendants to do so in the past in their answers or in response to interrogatories which were not completely dissimilar to those tendered by the plaintiff in this case. (See, e.g. Paku v. M.V. Leasing Corp.; Solone v. Reck.) Neither can we condone the inaction of plaintiff and the first two attorneys engaged to represent him in this matter. We believe this is a case of negligent and incomplete investigation of the facts. Nevertheless, we believe this type of negligence falls within the definition of inadvertence set forth above. We also note that plaintiff and his third attorney acted with reasonable dispatch to add the corporate defendant after actual discovery of its existence. We therefore hold that under the circumstances of this case, the plaintiff met the requirement of inadvertence in section 46(4)(b) and that the trial court properly overruled the corporate defendant's motion to dismiss.

• 2 Both defendants contend that the trial court committed reversible error in the admission of plaintiff's exhibits 1 through 11. These exhibits are black and white Polaroid photographs, together with enlargements thereof, which show the rear of defendants' truck. Defendants challenge the evidence, basically on two grounds: first, that no proper foundation for the admission thereof was laid and, second, that even if the proper foundation were laid the court should have given an instruction limiting the purposes for which the jury could consider these photographs. The foundation requirements for the admission of a photograph into evidence are well established.

"In order to have a photograph admitted in evidence it is only necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts. The witness need not be a photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene in question and testify that it is correctly portrayed by the photograph." (Clauson v. Lake Forest Improvement Trust (1971), 1 Ill. App.3d 1041, 1047, 275 N.E.2d 441, 445.)

In the case before us the parties hereto entered into a stipulation, the relevant part of which reads as follows:

"IT IS HEREBY STIPULATED and AGREED by and between the parties hereto, through their respective attorneys, that at the trial of this cause certain Polaroid photographs of the rear portion of defendant LODESKY'S trailer vehicle hearing Illinois license 101729 ST (June, 1972) fairly and reasonably depict the condition of said trailer immediately after the collision of November 22, 1971."

While it is true that in the case before us no witness testified to the accuracy of the scene depicted by the photographs, we believe the stipulation of the parties provided an adequate foundation for their admission.

• 3 The law in Illinois with regard to stipulations was set forth long ago in City of Chicago v. Drexel (1892), 141 Ill. 89, 104, 30 N.E. 774, 779:

"A solemn stipulation by a party as to the facts, so long as it stands, is conclusive between them, and can not be met by evidence tending to show that the facts are otherwise. If a stipulation has been entered into unadvisedly or through misinformation, the party injured should seek, by some direct proceeding, to have it set aside and cancelled, but such party will not be permitted to ...

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