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Fontanne v. Federal Paper Bd. Co.





APPEAL from the Circuit Court of Cook County; the Hon. LOUIS WEXLER, Judge, presiding.


Rehearing denied April 26, 1982.

The plaintiff as administrator of his wife's estate recovered from the defendant after the tractor-trailer loaded by defendant and driven by plaintiff and his wife overturned, killing her. Defendant appeals, contending:

(1) the deceased was guilty of contributory negligence as a matter of law because Federal regulations put the duty on the driver to be sure the cargo was properly distributed and adequately secured;

(2) the trial court erred in instructing the jury on recovery under the Wrongful Death Act (Ill. Rev. Stat. 1975, ch. 70, par. 2), because the husband was gainfully employed;

(3) the court erred in allowing a high-school dropout to testify as an accident reconstruction expert although he has been an accident reconstruction expert for over 18 years and had testified in over 3,000 cases;

(4) the trial court erred in allowing that witness to testify as to the length of marks in the roadway as determined by him from photographs in evidence;

(5) the trial court erred in refusing to strike the testimony of plaintiff's economist relative to the number of hours expended in a given day, week or month by a typical housewife working outside the home and the dollar value of said service since deceased was no ordinary working housewife;

(6) the trial court erred in allowing an eyewitness to the accident to testify that in response to plaintiff's statement that he did not know how the accident had happened, the witness had told the plaintiff "it shifted";

(7) the trial judge after the jury had been deliberating over seven hours erred:

(a) in not giving a Prim instruction although the jury said they believed they were close to a verdict;

(b) in telling the jury he would give it "another twenty minutes or so," there being no objection to this statement;

(c) in allowing the jury to report, voluntarily, that it had resolved liability but needed more time to discuss damages;

(d) in extending the time for deliberation after this communication, although this extension was not communicated to the jury;

(e) in not declaring a mistrial when the privacy of the jury's deliberations was breached by communication to the court of the status of those deliberations.

We find that the case was fairly and properly tried and that no error existed, or if there was any error in the admission of testimony, such was not prejudicial error.

While defendant has contended that the case should not have gone to the jury, it does not contend that the verdict is against the manifest weight of the evidence. Accordingly, neither a detailed nor a comprehensive discussion of the occurrence testimony is required. The plaintiff, Lance Fontanne, was born on May 22, 1949; the deceased, Kathy Fontanne, was born on July 24, 1951. They were married on July 24, 1971. When they were first married, she worked as a secretary for J & M Electronics. Afterwards she worked for the International Brotherhood of Electricians. She was a high school graduate and had also taken a course in accounting.

In 1975 they became interested in becoming partners as a truck-driving team. They entered into a lease agreement for the purchase of a tractor. They were to receive title to the tractor around October 1977. They began driving in May 1975 and averaged 14,000 miles a month. He was paid 10¢ a mile and she was paid 6¢ a mile for every mile the truck was driven regardless of which one was doing the driving.

After Kathy became a truck driver with her husband, she spent 28 or 29 days on the road. Even then, she took care of the lawn most of the time and did everything in the house such as cleaning and washing, preparing meals, and cutting plaintiff's hair. She handled the family finances. She also sewed most of her own clothes. She was very thrifty and probably spent only $25 a week on herself and her personal needs; she wanted to put as much as she could in the bank. They had joint checking and savings accounts; she also had a savings account in her own name. They were purchasing a house under a mortgage.

On March 2, 1976, they went to defendant's plant in Richmond, Virginia, to pick up a load of paper products bound for Denver, Colorado. Defendant is a manufacturer of paperboard products. They had to wait about 1 1/2 hours before pulling into a dock area. Once a dock area was open, plaintiff backed the tractor into the dock, went up on the dock and told them he was picking up the load for Denver. He was immediately instructed to go to another office about 300 feet away to take care of the paper work. That office was not visible from the dock. Plaintiff and deceased went to that office, where they made certain necessary telephone calls in connection with the shipment and completed the paperwork.

Robert McCrone, the dock supervisor, testified by evidence deposition that it took between one and two hours to load the truck. The paper products rested on skids that each weighed close to one ton. They were anywhere from 34 to 36 inches in width and 48 to 60 inches in length. They were 50 inches high. There were 17 skids in the load. Although the truck could legally carry about 44,000 pounds, the total weight of this load was 36,000. While several witnesses described the placement of the skids in the truck it is unclear just how they were placed since the witnesses generally referred to photographs of the skids and diagrams which were introduced into evidence; none of these were part of the record on appeal. It does seem clear that the last skid went across the ...

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