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Gibson v. State Farm Mut. Auto. Ins. Co.





Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.


Plaintiff appeals from a judgment for defendant in an action seeking a declaration of her rights under the uninsured motorist provisions of two automobile insurance policies issued by defendant. She contends that: (1) the trial court erred in (a) ruling that she bore the burden of proving that a hit-and-run vehicle was involved in the accident which caused the insured's injury, and (b) admitting the hearsay testimony of police officers who investigated the accident; and (2) the judgment is contrary to the manifest weight of the evidence.

In her complaint for declaratory judgment, plaintiff alleged in pertinent part that her husband, Kevin Gibson (Gibson), died on August 2, 1978, as the result of an accident in which the motorcycle he was driving was struck by a hit-and-run motor vehicle; and that at the time of his death Gibson was the insured under two policies issued by defendant both of which provided in relevant part:

"We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.

Uninsured Motor Vehicle means:

3. a `hit-and-run' land motor vehicle whose owner or driver remains unknown and which strikes:

a. the insured or

b. the vehicle the insured is occupying and causes bodily injury to the insured."

She further alleged that defendant had wrongfully denied coverage, and asked that the trial court declare her right to recover under the uninsured motorist provisions of the policies. In its answer, defendant admitted that Gibson was the insured under two automobile insurance policies issued by it; that those policies contained uninsured motorist provisions which covered injuries caused by a hit-and-run vehicle; and that Gibson died as a result of injuries sustained in a vehicular accident. However, it denied that any hit-and-run motor vehicle was involved in the accident, and a hearing was therefore held on the sole issue of the cause of the accident which resulted in Gibson's death.

At trial, David Wisniewski testified that, in the early morning hours of August 2, 1978, he and Gibson were riding their motorcycles northbound on Western Boulevard near 49th Street on the south side of Chicago. He was in the left lane, and Gibson was beside him in the right lane; however, as they approached a viaduct just south of 49th Street, he accelerated and passed Gibson, but remained in the left lane. Shortly thereafter, he heard a loud screech and a crash, and when he glanced back he saw Gibson and his motorcycle flying through the air. Wisniewski further testified that after the accident, both Gibson and his motorcycle were north of the intersection of 49th and Western; Gibson was lying near a lamp post at the corner, and his motorcycle was in the middle of the street. He (Wisniewski) then drove to 47th and Western, where he located two officers, explained what happened, and returned to the scene. The next morning, he again visited the site of the accident, and noted tire tracks near the middle of the intersection and under the viaduct, as if an automobile driver had slammed on his brakes. Wisniewski also stated that the screeching sound he heard at the time of the accident was made by an automobile rather than by Gibson's motorcycle. On cross-examination, Wisniewski acknowledged that he did not see any cars traveling in the northbound lanes of Western Boulevard prior to or immediately after the accident. He further testified that, after the accident, Gibson's motorcycle was in one piece, but the handlebars and seat were damaged, and the front tire was flat as the result of being pierced by a screwdriver; he knew that Gibson kept a screwdriver in the tool kit under his seat, and opined that the screwdriver entered the wheel as the motorcycle was flying through the air.

Caesar Torres testified that on the night of the accident he was in the yard of the Dracket Company, located northeast of the intersection of 49th Street and Western Boulevard, when he heard the noise of motorcycle engines. He was approximately 100 feet from the well-lighted intersection, and when he looked up, he saw two motorcycles emerge from under the viaduct, traveling north on Western, the one in the left lane riding slightly ahead of the vehicle in the right lane. As the motorcycle approached the intersection, a dark orange automobile attempted to pass between them, and the car's right front fender struck the motorcycle in the right lane, causing the motorcycle to overturn and the driver to be thrown against a lamp post on the corner; the point of impact was on the left side of the motorcycle near the rear wheel. Torres stated that he did not hear brakes screeching, nor did he hear the sound of a collision. After the accident, the automobile involved turned east onto 49th Street, passing within five feet of him, and he noted that there were two people in the car and that the driver was a white male. Torres further testified that, immediately after the accident, he described what he had seen to a police officer, and signed a statement which the officer prepared, but asserted that he did not know what the statement said, since he cannot read or write English. On cross-examination, Torres admitted that there is a viaduct across Western Boulevard just south of 49th Street, but asserted that this structure did not block his view of the accident because it occurred in the intersection. Torres acknowledged stating in a deposition that he could not describe or give the number of the vehicle's occupants and that after the accident Gibson's motorcycle was in two pieces. Finally, Torres testified that he did not recall telling an insurance investigator shortly after the accident that he did not see the car hit the motorcycle, nor did he recall telling an officer on the night of the accident that he did not see the car collide with the motorcycle.

Donald Rohe, testifying for defendant, stated that he was the insurance investigator assigned by defendant to investigate the accident which caused Gibson's death. He spoke to Torres by telephone on September 25, 1978, and although Torres at first said that he saw another vehicle strike Gibson's motorcycle, he later stated that he thought that was what happened, but did not actually see any collision because the embankment of the viaduct obstructed his vision. Torres also said at that time that both motorcycles were hit by the car. Rohe further testified that on October 2, 1978, Wisniewski told him that he did not see any vehicle but did hear a screeching noise that sounded like an automobile skidding or brakes squealing.

Officer Krause testified for defendant that he responded to a radio call of an accident at 49th and Western Boulevard on the night of August 1-2, 1978. When he arrived at the scene, Gibson was lying against a lamp post on the northeast corner of the intersection, and his motorcycle was lying on its side in the middle of Western, approximately 50 feet north of the intersection. He interviewed Wisniewski, who said that he did not know what happened, then spoke to Torres, who stated that he had heard noises and, when he looked up, he saw a motorcycle sliding down Western and a car driving east on 49th Street, but did not see the car strike the motorcycle. Krause next testified that he examined the scene of the accident that night, and found fresh scrape marks on the east curb of Western Boulevard under the viaduct; there were other gouges in the pavement of the street, beginning under the viaduct and ending where Gibson's motorcycle was resting. An examination of the motorcycle revealed that it was heavily damaged by concrete scraping marks, but contained no other residue or substance. Krause acknowledged that his report stated that the automobile seen by Torres contained a white male and a white female, and that he could not recall whether it was noted in the report that Torres said he did not see the collision, although he thought there was a note to that effect.

Officer Taglioni testified that, because the accident was initially classified as a hit-and-run traffic accident, further investigation was undertaken. He and his partner reviewed the reports and statements of eyewitnesses, then examined the scene on the morning of August 2, 1978, specifically seeking evidence that another vehicle was involved. They found gouge marks along the curb on the right-hand side of the northbound lanes of Western Boulevard, commencing under the viaduct south of 49th Street; Taglioni concluded that the marks were of recent origin, because they were still clean and there was concrete powder around them. He and his partner then went to the spot where reports indicated Torres was standing at the time of the accident, and determined that the point where the gouge marks began was not visible from that site; Torres' view would have been blocked by the embankment around the viaduct. Taglioni further stated that the section of Western Boulevard which is under the viaduct was visible only to a person standing within five or six feet of the northeast corner of Western and 49th Street. The officer then testified that he examined Gibson's motorcycle on the morning of August 2, and noted that it was badly damaged on the right side, and that there was a residue of powder on it, which he thought was concrete dust, although no laboratory ...

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