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Oakview New Lenox Sch. Dist. v. Ford Motor Co.

OPINION FILED JUNE 28, 1978.

OAKVIEW NEW LENOX SCHOOL DISTRICT NO. 122, PLAINTIFF-APPELLEE,

v.

FORD MOTOR COMPANY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Will County; the Hon. THOMAS M. EWERT, Judge, presiding.

MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Ford Motor Company appeals from a judgment entered in favor of Oakview New Lenox School District in the Circuit Court of Will County in a property damage suit arising out of a school bus accident. The facts are not in dispute.

In May 1969, the Oakview New Lenox School District ordered a new 66 passenger school bus from Cooper Show Ford, a Ford dealer located in Frankfort, Illinois. The Ford Motor Company built the chassis which was then sent to Lima, Ohio, where the Superior Bus Company attached a Superior bus body to the Ford chassis. From Lima, the bus was driven to the dealer in Frankfort where it successfully underwent a safety inspection as required by the Office of the Superintendent of Public Instruction. The bus was delivered in New Lenox on September 2, 1969, at which time the odometer registered 312 miles. That night the superintendent of schools drove the new bus around the school parking lot with the members of the school board as passengers. On September 5, Dorothy Vangor, an experienced school bus driver, drove the new bus a distance of approximately one mile to a service station for gasoline and back to the parking lot. The bus remained parked in the parking lot in front of the school under flood lights from the date of delivery until the first day of school except for the two trial runs.

On the first day of school, September 8, 1969, Mrs. Vangor drove the bus on her regular route. Later that day, about 11 a.m. during the course of her second run of the day and while transporting 45 kindergarten students, she drove north on Cedar Road, a two-lane blacktop highway, past a T-intersection where she stopped, backed into the intersecting road and then proceeded south until she saw a State highway truck with flashing lights ahead. As she gently depressed the brake pedal to slow down, the bus went out of control into a shallow ditch to the right of the road. After removing the children from the tilted bus, Mrs. Vangor inspected the undercarriage of the bus and saw that the axle was disengaged and the right-hand U-bolt, which fastens the axle to the spring, lacked nuts. Mrs. Vangor denied striking any bumps or holes prior to the accident and said she was driving between 15 and 20 miles per hour in a third gear at the time of the accident.

A short time later the school superintendent, Arnold Tyler, and the district's transportation coordinator, Patricia Bally, arrived at the scene, and each inspected the bus. Tyler saw that the front wheels were shoved back under the front of the bus while Mrs. Bally saw no nuts on the two U-bolts on the right side and saw that the U-bolts were sprung. She also saw that the cotter pin was missing from the front shackle on the left side. The spring was completely detached from the frame and was on the ground. Polaroid photographs were taken at the scene which are consistent with the statements of the witnesses. After the accident the district rented a replacement bus for $784 until the damaged bus was repaired at a cost of $1808. The bus was still in use at the time of trial.

The school district filed suit against Ford Motor Company alleging that defendant Ford was liable on the basis of strict liability, negligence, wilful and wanton misconduct, and breach of warranty. In the course of pretrial discovery, defendant's answers to interrogatories were signed by D.R. Jolliffe, assistant secretary of Ford Motor Company, a resident of Michigan. Jolliffe's affidavit attached to the interrogatories stated that he is duly authorized to sign the answers to interrogatories on behalf of defendant; that the matters stated in the answers are not within his personal knowledge; that he is informed that there is no officer of Ford who has personal knowledge of such matters; that the facts stated in the answers have been assembled by authorized employees and counsel of Ford; and that he is informed by counsel that the facts so stated are true.

Prior to trial plaintiff served notice on defendant's counsel that Jolliffe's presence would be required at trial pursuant to Supreme Court Rule 237 which provides:

"(b) Notice to parties et al. The appearance at the trial of a party or a person who at the time of the trial is an officer, director, or employee of a party may be required by serving the party with a notice designating the person who is required to appear. * * * If the party or person is a nonresident of the county, the court may order any terms and conditions in connection with his appearance at the trial that are just, including payment of his reasonable expenses. Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate." Ill. Rev. Stat. 1977, ch. 110A, par. 237(b).

Defendant filed a motion to quash the notice, asserting that Jolliffe was not a resident of Illinois, that he has no personal knowledge of the facts of this case, and that his attendance at trial would be an undue hardship on him. After a hearing the trial court denied the motion to quash and filed a memorandum opinion stating, inter alia, that Jolliffe is one of the persons covered by Rule 237 and that plaintiff should be able to obtain its evidence before trial by an evidence deposition. The court then amended an earlier order to allow the taking of depositions of Jolliffe by either party until May 21, 1974, three weeks before the trial was to commence.

Trial was subsequently postponed until January 10, 1977, and plaintiff did not at any time attempt to take Jolliffe's deposition. Defendant filed additional motions to quash the notice to Jolliffe in June of 1974, and again in December 1976, both of which were denied by the court after a hearing. One week before trial defendant filed notices that evidence and discovery depositions of Jolliffe would be taken in Dearborn, Michigan, on Friday, January 7, but plaintiff's counsel did not appear for those depositions.

At the beginning of trial defendant indicated that Jolliffe would not be present because he knew nothing about the case, and defendant asked leave to file Jolliffe's affidavit and deposition, both of which asserted his lack of knowledge of any of the matters involved in this case. The court refused to allow the documents to be filed and reiterated that the court's previous ruling would stand.

During the course of the trial, plaintiff called Jolliffe under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60), and when he did not appear, plaintiff filed a motion for sanctions. The court ruled that defendant was required to produce Jolliffe at trial because Ford does business in Illinois and thus has submitted to the jurisdiction of the Illinois courts>, that defendant failed to file Jolliffe's evidence deposition within the time allowed (by May 21, 1974), and that defendant's refusal to produce Jolliffe was wilful, deliberate and unreasonable, and was prejudicial to plaintiff. The court then, as a sanction, barred the presentation by defendant of any evidence relating to the condition of the bus chassis when it left the Ford factory and any evidence relating to whether that condition was unreasonably dangerous. After the sanction was imposed, defendant offered to stipulate to anything plaintiff would offer to prove by Jolliffe. Plaintiff refused to stipulate.

At the conclusion of all the evidence the case was submitted to the jury on all four theories of liability alleged in the four counts of the complaint. Defendant's motion to strike the allegations of wilful and wanton misconduct was denied. The jury found for plaintiff and against defendant on all four counts and assessed actual damages of $2,632 plus punitive damages of $20,000. After the court denied defendant's post-trial motion, this appeal was perfected. Defendant challenges the order to produce Jolliffe at trial and submission of the wilful and wanton count to the jury.

Defendant contends that the trial court lacked judicial power to compel the attendance of a nonresident witness on the theory that Supreme Court Rule 237 was intended to do no more than substitute notice to a party to attend trial in place of a subpoena, but not to give the court extraterritorial jurisdiction. Defendant relies upon Aldrich v. Maher (1st Dist. 1910), 153 Ill. App. 413, where the trial court held Mrs. Maher in contempt for failing to attend before an Illinois master to be personally examined about her accounts as trustee. Mrs. Maher claimed that ill health prevented her traveling from Boston, Mass., to Illinois, and the circuit court held her in contempt of court. The appellate court reversed, stating that no statute gives Illinois courts> any authority to compel a nonresident to appear personally within the ...


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