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Mudd v. Goldblatt Bros.





Appeal from the Circuit Court of Cook County; the Hon. John Breen, Jr., Judge, presiding.


Plaintiff Duncan Mudd brought this action to recover damages for injuries he suffered due to the alleged negligence of defendants, Boy Carriers, Inc., First Baptist Church of Hammond, Indiana, Indiana Harbor Belt Railroad Company and Terry Frankovich. An amended complaint included Goldblatt Bros., Inc., the parent company of Boy Carriers, Inc., as a defendant. The Indiana Harbor Belt Railroad Company was dismissed upon motion and is no longer involved. The trial court directed a verdict in favor of defendant First Baptist Church of Hammond at the end of plaintiff's case. The jury returned verdicts in favor of the remaining defendants. Plaintiff appeals from both the directed verdict and the jury verdicts.

Defendant has not presented any questions relating to the factual basis for the jury's verdicts. We will therefore state only the facts necessary to our discussion of the various assigned errors.

The injuries sustained by plaintiff, an 11-year-old boy at the time, occurred on March 26, 1975, in Hammond, Indiana. Plaintiff testified that he went with two friends to a vacant lot where several buses were parked. They boarded these buses, which were up on blocks, with wheels missing and windows broken. After one of his friends broke a window, they noticed some men coming from a nearby building.

Plaintiff stated that he jumped out the back door of the bus to get away from one of the men who came on the bus. He ran down the alley and saw that he was being chased by the same man (defendant Frankovich). He then ran across a street and through a parking lot. At this point he was near some railroad tracks upon which a freight train was traveling. Plaintiff, just five feet from the tracks, changed his direction and was cut off by the man chasing him. He stopped abruptly and fell backwards. Plaintiff's left hand was severed as it fell across one of the rails.

Frankovich was employed in its Hammond office by Boy Carriers, Inc., a subsidiary of Goldblatt Bros., Inc. Plaintiff's theory is that Boy Carriers, Inc., agreed with First Baptist Church of Hammond for its employees to protect school buses owned by the Church. Thus, it is alleged, Frankovich was not only acting as an agent of Boy Carriers and Goldblatt, Bros., but also as an agent of the First Baptist Church.

Frankovich was the only other eyewitness to the accident. He testified that he was in Boy Carriers' office when a fellow employee came in and said that some boys were breaking windows on the buses parked in the vacant lot. Frankovich and two other employees went outside to check. Several boys ran from one of the buses and Frankovich chased the boy (plaintiff) who came out the back door of the bus. He chased plaintiff down the alley, across a street and into a small parking lot near the railroad tracks. He saw plaintiff run alongside the tracks and dive under the train. As he arrived at the spot where he saw plaintiff, Frankovich saw him lying between the rails.

Frankovich further testified that he worked for Boy Carriers. He stated that his immediate supervisor told him and his fellow employees to keep an eye on the buses in the vacant lot. Frankovich's answer to the original complaint admitted the allegation of a relationship between Boy Carriers and First Baptist Church for the purpose of protecting the buses. This answer was later withdrawn by leave of court so that Frankovich could file a motion to dismiss plaintiff's amended complaint. However, a similar answer was made in response to plaintiff's third amended complaint which was filed during the trial and after the directed verdict for First Baptist Church. In his answer to an interrogatory propounded by plaintiff, Frankovich also stated there was an oral agreement for Boy Carriers and First Baptist Church to watch over each other's vehicles.

Boy Carriers' answer to the original complaint was filed in conjunction with Frankovich. However, an answer to an interrogatory, made by Boy Carriers' general supervisor, denied knowledge of any agreement with First Baptist Church. Subsequent answers to the second and third amended complaints filed by Goldblatt Bros. denied the existence of any relationship with First Baptist Church, but admitted that there was an understanding by certain employees that they would watch over property of First Baptist Church.

First Baptist Church denied all allegations that an agreement or agency relationship existed with Boy Carriers for the protection of church buses. Its theory is that plaintiff did not present any basis to conclude that such a relationship did exist. First Baptist Church argued at trial that any admissions of co-defendants made in the pleadings were inadmissible against it. The trial court agreed, sustaining the Church's objections. At the close of plaintiff's case, the trial court granted the Church's motion for a directed verdict.

• 1 Plaintiff first argues that the trial court committed error when it applied the Illinois rule, rather than the Indiana rule, regarding the burden of proof on the issue of contributory negligence. In Indiana, the burden of pleading and proving contributory negligence is placed upon the defendant. (See Ind. Code Ann. Rule TR. 9.1(A) (Burns 1983).) In Illinois, at the time of trial in this matter, the burden was on the plaintiff to prove freedom from contributory negligence. See Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.

Under traditional conflict of law rules, a "forum will apply its own local law in determining which party has the burden of persuading the trier of fact on a particular issue unless the primary purpose of the relevant rule of the state of the otherwise applicable law is to affect decision of the issue rather than to regulate the conduct of the trial." (Restatement (Second) of Conflict of Laws sec. 133 (1971); Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App.3d 919, 404 N.E.2d 265, appeal denied (1980), 81 Ill.2d 589; People v. Saiken (1971), 49 Ill.2d 504, 275 N.E.2d 381, cert. denied (1972), 405 U.S. 1066, 31 L.Ed.2d 796, 92 S.Ct. 1499.) In Babcock, this court was faced with a similar issue when it was argued that an instruction on the burden of proof for contributory negligence should have allocated the burden according to Michigan law. Under Michigan law, contributory negligence is an affirmative defense. We found the Michigan law was a procedural law designed to regulate conduct of the trial and determined that the trial court's instruction according to Illinois law was proper. Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App.3d 919, 929.

We, too, determine the Indiana rule is one of procedure regulating the conduct of the trial. Support for this proposition is found in Midland Trail Bus Lines, Inc. v. Martin (1935), 100 Ind. App. 206, 194 N.E. 862, in which it was stated that the predecessor statute to the current rule was "a rule of practice and not a rule governing a right of action." 100 Ind. App. 206, 211, 194 N.E. 862, 864; see also Chicago Terminal Transfer R.R. Co. v. Vandenberg (1905), 164 Ind. 470, 73 N.E. 990; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Wolf (1920), 189 Ind. 585, 128 N.E. 38; Southern Ry. Co. v. McNeeley (1909), 44 Ind. App. 126, 88 N.E. 714.

Plaintiff contends the Indiana rule is a substantive rule, or is substantive in effect, and therefore falls within the exception in the general rule stated above, citing Evansville & Terre Haute R.R. Co. v. Berndt (1909), 172 Ind. 697, 88 N.E. 612, Rhea v. Sawyer (1913), 54 Ind. App. 512, 102 N.E. 52, and Wamsley v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1907), 41 Ind. App. 147, 82 N.E. 490. In these cases, plaintiff argues, the respective reviewing courts> based their decision on the important substantive effect of the statute allocating the burden of proving contributory negligence on the defendant. After an analysis of these cases, we find they do not support plaintiff's contentions.

In Wamsley, the trial court directed a verdict in favor of the defendant. Reversing the trial court, the reviewing court noted that the defendant had the burden of proving contributory negligence and could not make assumptions that facts already in evidence showed the deceased's actions contributed to the accident. (41 Ind. App. 147, 151, 82 N.E. 490, 491.) In Rhea, an action for property damages, the trial court's instruction to the jury placed the burden of proving contributory negligence on the defendant. The appellate court reversed because the rule, as it existed in Indiana at that time, applied only to personal injury and death cases. (54 Ind. App. 512, 102 N.E. 52.) Finally, in Berndt, the Indiana Supreme Court made only passing reference to the statute making contributory negligence a matter of defense when it held harmless a presumption stated in an instruction. The court noted that the statute did not create a presumption of due care, but that it could have the same result when there is no evidence relating to contributory negligence. 172 Ind. 697, 705-06, 88 N.E. 612, 615.

Plaintiff also argues that the Indiana rule should be followed because the Illinois rule should be considered substantive. (Citing Valleroy v. Southern Ry. Co. (Mo. 1966), 403 S.W.2d 553; Precourt v. Driscoll (1931), 85 N.H. 280, 157 A. 525.) In an action under Federal Employers' Liability Act (45 U.S.C.A. sec. 51 et seq. (1976)) arising out of an accident in Illinois, the Missouri Supreme Court considered whether the plaintiff was required to follow the Illinois rule and plead the exercise of due care or if the Missouri rule placing the burden on defendant should be followed. Following Missouri case law (see O'Leary v. Illinois Terminal R.R. Co. (Mo. 1957), 299 S.W.2d 873), the court determined the Illinois rule was a substantive requirement and thus should be applied. Precourt involved a similar analysis with an accident occurring in Vermont, the Vermont rule and the lawsuit brought in New Hampshire.

These cases represent a line of cases which have held that a foreign State's rule allocating the burden of proving contributory negligence on the plaintiff was intended to affect substantive rights and therefore should be applied in a lawsuit in the forum State. (See Annot., 35 A.L.R.3d 289, 318 (1971).) Illinois considers the burden of proof of contributory negligence to be a procedural matter. (Babcock v. Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App.3d 919, 929.) We have determined that under Indiana law this burden of proof, placed on the defendant there, is also procedural. Thus, the trial court was correct in applying Illinois law in this regard.

• 2 Plaintiff next argues that he was prejudiced by the giving of the following special interrogatory:

"Do you find that plaintiff was, before and at the time of the occurrence, exercising ordinary care for his own safety so as to avoid proximately causing himself injury?"

Plaintiff contends this interrogatory prejudiced him by holding him to a standard of care greater than that required of a minor. He also argues that the interrogatory was confusing, misleading, did not control the general ...

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