author: Mr. Justice Dove

text:
    Stanley M. Ringel, Administrator of Estate of Oliver B. Kruger, Deceased, Appellant, v. Helding Pearson, Appellee.
    Gen. No. 9,568.
    Opinion filed June 28, 1940.
    Rehearing denied August 1, 1940.
    Laudon & Morten, of Redwood Falls, Minn., and Franklin P. Searle, of Rock Island, for appellant; Julian E. Morten, of counsel.
    Safford, Kritzer & Fulton, of Monmouth, Thomas J. Welch and Vera M. Sinks, both of Kewanee, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Stanley M. Ringel, administrator of the estate of Oliver B. Kruger, deceased, brought this suit against Helding Pearson to recover damages for the alleged wrongful death of his intestate. The complaint charged that plaintiff’s intestate, while walking north on State Route 78 on December 25,1938, near the village of Annawan, was struck and killed by an automobile being driven in a southerly direction along said highway by the defendant. The answer of the defendant denied the charges of negligence, denied that the plaintiff was in the exercise of due care for his own safety and denied that the next of kin of the deceased suffered any pecuniary loss by reason of his death. The defendant also set up a special defense in which he alleged, that on December 28,1938 the plaintiff, as administrator of the estate of Oliver B. Kruger, in consideration of the sum of $1,250, released and relinquished all claims, action and causes of action against the defendant on account of or arising out of the acts described in the complaint. The release was set out in full and was dated December 28, 1938 and signed and acknowledged by the plaintiff as administrator of the estate of Oliver B. Kruger, deceased, and the special defense concluded that by reason of said release the plaintiff as administrator is barred from maintaining this action.

To this special defense the plaintiff replied, alleging, among other things, that at the time of the accident the deceased had two brothers who reside on farms a short distance from the scene of the accident. That decedent’s next of kin were Yerna Johnson, his daughter, Harlan Kruger and Walter Kruger, his sons, and that at the time of the death of their father they resided in the State of Minnesota and were absent from the State of Illinois. That upon the evening of the accident the body of plaintiff’s intestate was taken to the undertaking establishment of Paul Wilson, who refused to release the body for the purpose of expressing it to the State of Minnesota for burial until the fees and charges of the undertaker were fully paid; that the brothers of said decedent living in Illinois did not have the money with which to pay said undertaker; that said brothers were not the next of kin of decedent and had no pecuniary interest in his estate; that there was an unfriendly relationship existing between the brothers and the children of the decedent; that the defendant was covered by a public liability policy of automobile insurance issued by the Farmers Auto Insurance Association of Pekin, Illinois, by the provisions of which said company was liable to pay any judgment, within the limits of the policy, which might be obtained against the defendant as a result of said accident and that said insurance company, by reason of the provisions of said policy, is conducting the defense of this suit for said defendant. That said insurance company being so liable for damages as a result of said automobile accident, by its agents and servants on December 26,1938 entered into a plan and conspiracy to cheat and defraud the plaintiff and the next of kin of the decedent by misrepresentations with reference to the cause of action arising by virtue of the wrongful death of said decedent. That as a part of said plan one Ferdinand, an adjuster for said company, called on the brothers of said decedent at their farm homes and stated to them that neither the defendant herein nor said insurance company was liable in a suit for damages as a result of said accident and that if suit were instituted against the defendant no recovery could be made against him and that even if judgment were obtained against him, such judgment would not be collectible because he had no property and that under the terms of its policy the insurance company would not have to pay even though a judgment was obtained against the defendant as a result of the accident. The reply further alleged that Ferdinand told said brothers of said decedent that they were legally liable to said undertaker for his charges and services in preparing the body of the decedent for burial; that if a settlement were made with reference to this cause of action, the proceeds could be used to pay the undertaker for his charges and thereby relieve said brothers from their personal liability therefor; that said brothers should get one of their farmer neighbors to act as administrator of the estate of said decedent for the purpose of executing a release to the defendant and to said insurance company and that it was not necessary for them to communicate with the children of the decedent with reference to the settlement or to get the consent and approval of the said children for said settlement but that if a settlement were to be made it would have to be made immediately, otherwise the insurance company would pay nothing. That thereupon the said brothers of said decedent and said Ferdinand came to the plaintiff and requested the plaintiff to act as administrator as aforesaid and thereafter the plaintiff met with said brothers and with said Ferdinand and with one Thomas Welch, the attorney for said insurance company j that they met at the undertaker’s parlor in Annawan, Illinois; that said Ferdinand then and there made the same representations to plaintiff that he had theretofore made to said brothers of said decedent and the said undertaker then and there stated that he would not permit the remains of said decedent to be sent to Minnesota for burial until his charges had been first paid. The reply then alleges that the plaintiff relied upon the false, fraudulent and deceitful statements of Ferdinand and believed said statements to be true and thereupon consented to act as such administrator and went with said brothers of said decedent and the said Ferdinand to the office of said Thomas Welch at his law office in Kewanee, Illinois; that said attorney was acting for and on behalf of said insurance company and that he then and there stated to the plaintiff that said proposed settlement was a good settlement, that it was very questionable if any recovery could be made if the proposed offer of settlement were not accepted and advised the plaintiff that the said undertaker could be paid from the proceeds of said proposed settlement. That thereupon the said attorney prepared the legal instruments necessary to appoint plaintiff as such administrator and appeared with him in the probate court of Henry county and procured his appointment as such administrator and prepared said release set forth in said special defense; that the plaintiff believed and relied upon said statements and representations and accepted said sum of $1,250 and executed a receipt therefor together with said release. To this reply defendant answered, admitting that at the time of the accident the decedent had two brothers residing in Henry county and that his three children, his next of kin, resided in the State of Minnesota and that the body of the decedent was taken to the Wilson Funeral Home in Annawan but denied all the other allegations set forth in plaintiff’s reply.

On motion of the defendant the trial of the issue raised by the special defense, reply of the plaintiff and answer thereto was heard by the court without a jury and at the conclusion of the evidence introduced on behalf of the plaintiff the trial court rendered judgment in favor of the defendant in bar of the action and against the plaintiff for costs. To reverse this judgment the plaintiff appeals.

The evidence disclosed that Oliver ICruger, the decedent, died almost instantly as a result of injuries which he received on the evening of December 25, 1938 when he was struck by an automobile operated by the defendant while decedent was walking along Route 78 south of Annawan, Henry county, Illinois. The accident occurred between 6 and 7 o ’clock in the evening. The decedent was a divorced man, working as a farm hand near Annawan and earning $40 per month in addition to his room and board. He was 53 years of age and left him surviving three adult children, all residing in Minnesota, Harlan Kruger, 25 years of age, Verna Kruger Johnson, 23 years of age and Walter Kruger, 22 years of age. The decedent had three brothers residing in the State of Illinois, Chris Kruger aged 45, whose wife is a sister of the plaintiff herein; Hans Kruger, who lived in Chicago and was 48 years of age, and Ed Kruger, who was employed on the farm of his brother Chris Kruger and was 55 years of age. Chris Kruger was the owner and manager of his own farm. The plaintiff is a farmer having a common school education and at the time of the accident was 42 years of age.

After the accident the body of decedent was taken to the Wilson Funeral Home at Annawan and the following morning the brothers of the decedent, accompanied by the plaintiff and plaintiff’s sister, Mrs. Chris Kruger, went to the undertaking parlors to attend the coroner’s inquest and at their request no inquest was held until they had had an opportunity to go to the scene of the accident. Thereafter Mr. and Mrs. Chris Kruger, Ed Kruger and the plaintiff drove to the scene of the accident and returned to the funeral home and attended the inquest, after which they went to the Chris Kruger home. They then returned to the Wilson Funeral Home, where Wilson, the undertaker, advised them that a Mr. Ferdinand, representing an insurance company, had been there and made an offer to settle the liability of the defendant and would pay around $350; that he, Wilson, had told Mr. Ferdinand that he did not think the brothers of the decedent would accept any such offer inasmuch as a railroad company had recently settled a death claim for $1,250. That thereupon the undertaker inquired of the brothers whether they were going to take care of the funeral bill or whether the decedent had finances of his own. To this inquiry the Kruger brothers advised Mr. Wilson that the decedent didn’t have anything and that they had nothing with which to take care of the undertaker’s bill and they didn’t believe the children of the decedent had any ready cash at that time. That thereupon Mr. Wilson, the undertaker, said he would have to have his money before he would release the body for shipment to Minnesota.

The evidence further discloses that the plaintiff and the brothers of decedent then left the funeral home and that evening one of the brothers talked to the daughter in Minnesota and the following morning Chris Kruger, Ed Kruger and Hans Kruger, who had arrived at the Chris Kruger home from Chicago, met Mr. Ferdinand for the first time at the funeral home in Annawan and while there one of the brothers talked by phone with one of the sons of the decedent in Minnesota. Thereafter Mr. Ferdinand, representing the insurance company, again came to the funeral home and told the brothers that the insurance company would pay $1,250 in cash and would further pay the necessary attorney’s fees for obtaining the appointment of an administrator, together with the probate court’s fees arid administrator’s fees in full settlement of the claim; that the brothers could use the money to pay Mr. Wilson for his services as undertaker and the body could be released for transportation to Minnesota for burial and that it was not necessary to get the consent of the children of decedent in order that the settlement would be effective. That Mr. Ferdinand stated that they could think his offer over until the next morning at 10:00 o ’clock and if they would let him know by that time he would have the matter closed up but that if they didn’t accept his offer by that time he would withdraw it. Mr. Ferdinand thereupon left the undertaking parlors and the brothers of the decedent talked the matter over with Mr. Wilson, who told them that he thought, considering everything, that it was a good offer and he advised them to take it; that if they did accept it they would have the cash with which to pay the funeral expenses, otherwise he couldn’t let the body go to Minnesota. Before Mr. Ferdinand left, the brothers told him that they ought to have more than he offered but that they would think it over until the next day and let him know. After leaving the funeral home, the brothers of decedent and the plaintiff went to the plaintiff’s home and there considered and discussed the offer of the insurance company and decided to accept it. None of the brothers wished to serve as administrator and each suggested that one of the others be appointed. Finally it was agreed that the plaintiff should act as administrator and the next morning all of them went to Annawan to the funeral home and requested Mr. Wilson to call Mr. Ferdinand and he arrived at the funeral home about 11:00 o ’clock in the morning. The Kruger brothers advised him that they would’accept the settlement and thereupon Chris Kruger, Ed Kruger, Mr. Ferdinand and the plaintiff went in Mr. Ferdinand’s car to the law office of Thomas J. Welch in Kewanee. This was on Wednesday afternoon, December 28th, and upon their arrival there Mr.' Ferdinand advised Mr. Welch that a settlement had been effected and that the plaintiff was to be appointed administrator and that in addition to paying $1,250 the insurance company would pay the administrative costs, including court’s costs and attorney’s fees. Mr. Welch prepared the necessary papers and the Kruger brothers, Mr. Welch and the plaintiff went with Mr. Ferdinand in his car to Cambridge, the county seat, where they consulted with the probate Judge and they advised him that a settlement was being made for $1,250. Letters of administration were duly issued to the plaintiff and the release executed and delivered and thereupon Ferdinand gave the plaintiff two drafts, one for $835 and another one for $415. This latter draft for $415 was indorsed by the plaintiff and delivered to Mr. Wilson. Thereafter Chris Kruger left with the body of the decedent for Minnesota for burial.

The evidence further discloses that Harlan Kruger, the eldest son of the deceased, was advised by telephone of his father’s death on Sunday night, December 25th, ar I the next day he was advised that a settlement was being considered and on Tuesday he knew that a settlement had been agreed upon and that the amount of the settlement was $1,250. He testified that he lived about 145 miles from St. Paul, Minnesota, living on a farm 2 miles west of Cottonwood. He further testified that he intended to go to Annawan, Illinois for the purpose of taking the body of his father to Minnesota for burial but that there was a snowstorm in Minnesota during that time; that he had some difficulty in communicating by phone with his uncles in Illinois and that he did not go to Illinois inasmuch as he learned that a settlement had been effected.

It is argued by appellant that the statement made by Ferdinand that a judgment against the defendant might not be collectible was a false statement of a material fact and therefore invalidated the release. Counsel for appellee insists that the evidence does not show that this statement was false and that at the most it was merely an expression of an opinion of what might happen in the future and not the statement of an existing or preexisting fact. It is a well-recognized rule that one who seeks relief on account of fraudulent statements must have relied upon such statements. The record in this case discloses that the court inquired of the plaintiff whether he ever at any time took part in determining whether the settlement should be made or not and the plaintiff advised the court that the Kruger brothers had asked him what he thought about it; that he stated he was an outsider and did simply what the Kruger brothers told him to do and made no decision himself. It therefore conclusively appears that no representations made by Ferdinand were relied upon by the plaintiff. He was simply an instrumentality in the hands of the Kruger brothers and did what they requested him to do. The evidence is that the offer of $1,250 by the insurance adjuster was made on Tuesday afternoon and that the adjuster or representative of the insurance company told the plaintiff and the brothers of the decedent that it would remain open until 10 o’clock the following morning and this adjuster did not meet them again until they sent for him the following morning and he met them at the funeral home at their request. The brothers are the ones who made the decision to accept the offer of Ferdinand and they made it in their own home, when Wilson was not present, when Ferdinand was not present and when Welch, the attorney for the insurance company, was not present. The evidence is that their decision to accept the offer was made known to the plaintiff the following morning when he came to their home and drove with them to Annawan. The plaintiff knew that the settlement proposed was for $1,250 and knew that was the amount he was expected to receive from Ferdinand and that the acceptance of said amount by him was agreeable to the brothers of decedent, some of whom had been in communication with the children of decedent who were in Minnesota.

There is absolutely no evidence in this record that Mr. Welch said or did anything to influence the plaintiff to accept the amount offered by Mr. Ferdinand. He prepared the necessary legal papers in order to have the plaintiff appointed administrator and the release which correctly embodied the agreement of the parties. There is nothing in this record that would impute any fraud to Mr. Welch.

It is insisted that the insurance company entered into a plan and conspiracy to cheat and defraud the plaintiff and next of kin of the decedent. This averment is not sustained by the evidence. No confidential relationship is shown to have existed between the parties to this release and the evidence is that it was in good faith fairly and understandingly entered into. Appellant, as administrator, had authority to settle his dluim against a party for wrongfully causing the death of his intestate without an order of the probate court directing him or authorizing him to do so. Washington v. Louisville & N. Ry. Co., 136 Ill. 49.

We have examined the authorities cited by appellant and the evidence found in this record and we are of the opinion that the evidence under the authorities does not sustain the allegations of fraud. The chancellor saw and heard the several witnesses and came to the only conclusion under the law that the evidence warranted.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Presiding Justice Wolfe.

license: Public Domain

text:
    Clyde O. Argyle et al., v. The Truckers Coal Company et al., Appellants.
    Gen. No. 9,567.
    opinion filed June 28, 1940;
    rehearing denied August 1, 1940.
    John P. Madden, Francis A. and Thomas B. Dunn, for appellants; Smith & Hynds, for appellees; H. B. Smith and William I. Hynds, of counsel.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


text:
    Adam W. Miller, Appellee, v. Elmer H. Odell, Appellant.
    Gen. No. 9,570.

      opinion filed June 28, 1940;
    rehearing denied August 1, 1940.
    F. A. Ortman and Adsit, Thompson & Herr, for appellant; Neale Hanley and Baker, Niven & Crabtree, for appellee.
   Opinion by

Presiding Justice Wolfe.

“Not to be published in full.”


author: Justice Huffman.

text:
    A. W. Francke et al., Appellants, v. William W. Eadie et al., Appellees.
    Gen. No. 9,415.
    opinion filed June 28, 1940;
    rehearing denied August 1, 1940.
    Walter E. Healy and Harry L. Heer, for appellants; Burrell & Burrell and Nack & Nack, for appellee; David M. Burrell, of counsel.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Harry Butler, Assignee of S. A. Calhoun, Appellants, v. Great Lakes Pipe Line Company, Appellee.
    Gen. No. 9,543.
    opinion filed June 28, 1940.
    Fremont M. Kaufman, for appellant; Fred E. Gardner, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


text:
    Ruth B. White, Appellee, v. City of Rockford, Appellant.
    Gen. No. 9,556.
    opinion filed June 28, 1940;
    rehearing denied August 1, 1940.
    A. V. Essington, Corporation Counsel, Carroll H. Nelson and William H. Barrick, for appellant; B. Jay Knight, David F. Madden and Frederick H. Haye, for appellee.
   Opinion by

Justice Huffman.

“Not to be published in full.”


author: Mr. Justice Dady

text:
    National State Bank of Metropolis, Illinois, Appellant, v. Miles-Botts Company, Inc. and L. M. Murrie (L. M. Murrie, Appellee).

      Opinion filed June 14, 1940.
    Rehearing denied August 20, 1940.
    Walter Roberts and H. A. Evans, both of Metropolis, for appellant.
    Grover E. Holmes, of Metropolis, and Chas. Durfee, of Golconda, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

Plaintiff, the National State Bank of Metropolis, Hlinois, obtained a judgment by confession on a note for $7,000 payable to its order signed by defendant Miles-Botts Company, Inc., a corporation, and indorsed in blank by defendant, L. M. Murrie. On motion of defendant Murrie the judgment was opened with leave to file an answer, and the judgment was ordered to stand as security. The issues formed by said defendant’s answer and plaintiff’s reply were tried by the court without a jury, and resulted in a judgment for the defendant Murrie. Plaintiff prosecutes this appeal to restore the judgment as originally confessed in the amount of $7,717.96.

The only issues to be decided on this appeal are set forth in the following language in defendant’s brief:

“As disclosed by the record, there is submitted to this Court for consideration but two questions:

“A. Whether as between the plaintiff bank and L. M. Murrie the indorsement on the back of the note was an accommodation.

“B. Whether L. M. Murrie waived demand and notice of dishonor of the note in issue.”

The record discloses that prior to 1929 the MilesBotts Company, which operated a “Chain-Grocery” business, borrowed $10,000 on its individual note from plaintiff. On June 27,1929, the company note was reduced to $7,000. Korte, president, and Bremer, cashier of the bank, testified in substance that in September of 1933 the bank examiners criticized the $7,000 company note, and requested that it be secured or collected; that E. C. Botts, secretary-treasurer of the company, was called to the bank, and in the presence of the examiners was told such note had to be paid or secured; that Botts left the bank with a new note dated June 30, 1933, and returned with it signed by the company, and indorsed by defendant Murrie; that the bank accepted the new note and gave Botts the old one marked ‘ ‘ paid ’ ’; that thereafter the note in question, dated June 30, 1934, similarly signed and indorsed, was given in renewal of the note dated June 30, 1933; that at no time prior to the making of the indorsement or at any time thereafter was Murrie told he would not be held liable thereunder; that no cash or credit was given Murrie for his indorsement and no demand for payment was made or notice of dishonor given; that the first complaint Murrie made concerning his liability under the indorsement was after judgment, when he sought a release upon payment of his personal note to the bank of $7,250, and which request was refused.

Botts, who testified for Murrie, stated that he went to the bank and was told by plaintiff’s president that the examiners were demanding additional security on the company note, and he should secure the signature of Murrie; that he took the note to Murrie and told him the “Examiners were there and wanted additional security on this paper and Mr. Murrie signed the note ’ ’ without “fuss or argument,” and he returned it to the bank; that at the time Murrie was acting as president of the company; that he recalled only one note on which such indorsement was secured.

Murrie testified that he indorsed the note in question; that it was brought to him by Botts, who told him at the time he signed that the “Bank examiner wanted further security” and Korte had sent the note to him for further security; that he had not talked to Korte before the note was signed; that thereafter he had conversations with Korte in which Korte promised to release him on his indorsement if his personal note was paid.

We are of the opinion that the issues presented should be decided against the defendant Murrie. Murrie indorsed the note in question before delivery to the payee bank without indicating on the note, although he had the right to do so, any restrictions or conditions to his liability. His status became that of a person not otherwise a party to an instrument who places thereon his signature in blank before delivery and becomes liable as an indorser. Such an indorser, where the note is payable to the order of a third person, as in this case, is liable to the payee and to all subsequent parties, unless he signs for the accommodation of the payee, in which event he is liable to all parties subsequent to the payee (ch. 98, § 84, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 89.084]).

To escape liability, Murrie had to show he was an indorser for the accommodation of the payee bank. Such proof is wholly lacking. Every reasonable inference that may be drawn from the evidence is that the Miles-Botts Company was the accommodated party and not the bank.

The purpose of the bank in obtaining the indorsement was to secure the added responsibility of Murrie for the payment of the company debt. Murrie was lending his name to the Miles-Botts Company for the purpose of continuing such company’s credit with the bank. It was reasonable for him to do so for he was a stockholder, acting president, and financially interested in its affairs. When the indorsement was made Murrie expressed no intention by word or act that he intended to accommodate the bank. The law gave him the privilege of attaching any condition he saw fit as to his liability but he failed to avail himself of this right when the indorsement was made. (Naef v. Potter, 226 Ill. 628). It is significant that when the indorsement was made the bank made its request plain, that is it sought additional security, and the bank did not, nor did any of its officers by representations or by their conduct, mislead or induce Murrie to sign or lead him to believe he was signing for the bank’s accommodation with the promise to hold him harmless. The mere fact, as testified to by Murrie and Botts, that Korte requested the signature of Murrie and the bank received a benefit thereby does not make the bank the accommodated party. (Paden v. American State Bank & Trust Co. [Tex. Civ. App.], 103 S.W. (2d) 243.) The most Murrie’s testimony shows in his favor is that after the indorsement was made he had conversations with Korte in which his indorsement was discussed and he was promised a release if he paid his personal note. Korte admitted that some conversations took place after judgment was taken, at which time Murrie sought a release on his indorsement, but Korte denied any promise to that effect on his part or on the part of the bank. Such an agreement, if made, was not pleaded by Murrie. No consideration is shown therefor, and an oral conversation or conversations of such character would not be binding on the bank under the stated circumstances. (State Bank of West Pullman v. Hovnanian, 250 Ill. App. 144; Cozad State Bank v. McLaughlin, 128 Neb. 87, 258 N. W. 36.)

Plaintiff was a holder for value of the note sued upon, and Murrie was liable to such bank on the note notwithstanding the bank knew at the time of the taking of said note that Murrie was only an accommodation indorser for his company. (Ch. 98, § 49, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 89.049]). It is admitted that the old company note for $7,000 was given for value. The renewal of that note furnished ample consideration for the new note signed by the company and indorsed before delivery by Murrie, although no cash or credit passed directly to Murrie. (Commercial State Bank of Forreston v. Folkerts, 200 Ill. App. 385; Aurora Nat. Bank v. Funk, 296 Ill. App. 437; Pierce v. Lowenthal, 161 Wash. 336, 295 Pac. 1021; Reed v. Gormley, 57 Ga. App. 821, 196 S. E. 921; Ætna State Bank v. Hawks, 213 Iowa 340, 239 N. W. 91; American Nat. Bank of Mt. Carmel v. Woolard, 342 Ill. 148.)

The right of an indorser, such as Murrie, to a demand for payment or to a notice of dishonor may be waived (ch. 98, §§ 104, 130, 131, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 89.104, 89.130, 89.131]). Embodied in the face of the note sued on was the following provision: “Presentation for payment, notice of dishonor, protest and notice of protest are hereby expressly waived by all parties to this note, including endorsers and guarantors. ’ ’ Murrie contends that such provision of waiver is not binding on him for the reason it appears on the face of the note and not above his signature on the back thereof. There is no merit to this contention. Such language was a part of the contract and included a waiver by the indorser and such waiver was binding on Murrie. (Dunnigan v. Stevens, 122 Ill. 396; Kats Finance Co. v. Levy, 241 Ill. App. 576; Spragins v. McCaleb, 237 Ala. 658, 188 So. 251; Cato v. Jeffreys (Tex. Civ. App.), 50 S. W. (2d) 413; Lewis v. Small, 172 Minn. 405, 215 N. W. 785,10 C. J. S. 957.)

For the reasons indicated, the judgment of the trial court is reversed and remanded with directions to restore the original judgment entered in favor of the plaintiff and against the defendants in the amount of $7,717.96 as of the" date thereof, January 12, 1935, and with costs of suit including costs of this appeal.

Reversed and remanded.


text:
    Stanly Castle and Elsie Castle, Appellants, v. Eugene Searles, Appellee.
    Opinion filed June 14, 1940.
    Rehearing denied August 20, 1940.
    Terry, Gueltig & Powell, of Edwardsville, for appellants.
    Manuel M. Wiseman, of Alton, and Philip G. Listeman, of East St. Louis, for appellee; Whitnel, Browning, Listeman & Walker, of East St. Louis, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

This was an automobile accident case tried on a complaint and counterclaim. The jury found the defendant not guilty on the complaint and found the counter defendant guilty on the counterclaim and allowed counter-claimant $5,100 as damages. The trial judge required a remittitur of $1,100 and on such remittitur being made entered judgment for $4,000 on the verdict.

Stanly Castle was plaintiff and counter defendant. His wife, Elsie Castle, was a coplaintiff. These two were the only occupants of the Castle car. Eugene Searles was defendant and counterclaimant. He and his father were the only occupants of the Searles car.

The accident, a head-on collision, occurred on December 11, 1938, on a curve on a paved State highway. The Castle car was being driven east or easterly by Stanly Castle, and the Searles car was being driven west or westerly by Eugene Searles. No other car had anything to do with the accident.

Each party alleged and claimed that the automobile of the opposite party was traveling on the wrong side of the pavement.

These four persons were the only eyewitnesses who testified to the manner in which the cars actually collided, — except that the testimony of the counter-claimant is corroborated by the testimony of the witnesses Kessie, Brittin and Forbes.

Stanly Castle testified he was driving easterly at his “usual speed around fifty miles” an hour; that as he was driving at his “usual rate of speed in the right-hand lane suddenly — very suddenly — a car appeared in front of” him and he had “no recollection of what happened after that,” and that “I first saw this car that came across the road just before it struck. I wouldn’t say how far away it was when I first saw it. . . . From a point where the accident occurred I could probably see a half mile to the east. I don’t know how fast it was coming. That car suddenly appeared in our lane and we were on our right-hand side, that is the first time it impressed itself on my memory.”

Mrs. Castle testified they were traveling between 45 and 50 miles an hour on their right-hand side of the pavement when ‘ ‘ suddenly a car veered into our path from our left. I can’t say what direction it was going because I didn’t see it until it hit us.”

Eugene Searles testified he was traveling between 20 and 30 miles per hour; “I seen a car coming around the curve which was taking in both sides of the road, and to avoid an accident I tried to pull off the road, which I did”; that he had all of his car, except the left rear' wheel, off the road on the northerly side of the road, on the shoulder, at the time of the collision; that he saw the Castle car about 150 yards before the impact and pulled off the road and applied the brakes, and was “pretty near to a stop when the collision occurred.”

Herman Searles testified he first saw the Castle car when it was about 150 or 200 feet distant; that his son applied the brakes and pulled off on the right-hand or northerly side of the road and was practically at a stop when the collision occurred, — and at that time the Searles car was off the slab on the north side of the shoulder, except the left back wheel was on the slab.

The witnesses Kessie, Brittin and Forbes were riding east in a car driven by Kessie. Each of these three witnesses testified that the Castle car passed them about 150 to 200 yards west of the place of the collision and in doing so traveled on the north side of the highway and didn’t get back to the south side of the highway before the collision.

Other witnesses who arrived on the scene immediately after the accident testified to the position of the cars and to a mark or marks on the southerly side of the pavement, but we do not consider it material to discuss such testimony. We place no particular significance on the location of such marks.

Stanly Castle was severely injured. Mrs. Castle was injured, but less severely. The injury to Eugene Searles, other than cuts and bruises, was a fracture of the second lumbar vertebra. After receiving emergency aid he was placed on a Bradford frame for about 10 days, a frame which arched the back. On the 10th day a cast was applied from his shoulders to his hips, which cast he wore until, and was wearing at the time of the trial on March 29,1939. He testified that he had done no work since the accident; that at the time of the trial he had to use a cane; that he didn’t have strength in his back; that his right knee bothered him; that it bothered him to move his neck; that he was nervous since the accident and was unable to sleep. He was in the hospital 10 days and thereafter was confined to his bed for about a month.

Stanly Castle and Elsie Castle first contend that the verdicts are contrary to the manifest weight of the evidence. In our opinion, so far as liability is concerned, such verdicts are not contrary to but are supported by the manifest weight of the evidence.

Criticism is made by them of the testimony of the three corroborating witnesses, but we see no justification for such criticism. No one of these three witnesses knew Eugene Searles or his father before the time of the accident, and they appear to be disinterested witnesses.

It is contended that the judgment is excessive. In our opinion the injuries shown by the record and which we have briefly described were sufficient to justify the amount originally allowed by the verdict, and the judgment is not excessive.

The Castles next contend that the court erred in not admitting in evidence plaintiffs’ exhibit 4, which was offered in evidence for the purpose of impeaching the testimony of Herman Searles. Herman Searles testified as a witness in behalf of his son. On cross-examination he was shown exhibit 4. This exhibit was signed “Herman Searles By Mrs. Lavella Horton By John L. Barteé.” Lavella Horton was the daughter of Herman Searles. He testified that he did not remember making any of the statements or being asked any of the questions written on the paper. He was not asked and did not testify whether he authorized any one to sign the paper or whether he knew that the paper was being so signed. Mrs. Horton, called as a witness by the plaintiffs, testified she did not hear her father make the statement and that she merely signed his name. She was not asked and did not testify whether her father asked or authorized her to sign his name. John Bartee, a witness for the plaintiffs, testified he did not hear Mr. Searles make any of the statements. He was not asked and did not testify whether Herman Searles authorized any of such signatures. It was not shown that Herman Searles knew of such writing or of such signatures. In our opinion a proper foundation was not laid for the admission of this exhibit, and there was no error in sustaining the objection to its admission.

Stanly Castle testified that he and his wife were making a trip from their home, a short distance from the place of the accident, to a farm they owned in Missouri. On cross-examination the following took place:

“Q. How big is that farm? A. 240 acres.

“Q. Now you say that you operate a farm in Foster-burg Township?

“Mr. Powell: Objected to; not material to this case giving his occupation, how big the farms are, I don’t see-

“Mr. Listeman: I didn’t ask how big the farm was.

‘ ‘ The Court: He asked how big the farm was in Missouri, and he answered without objection; I would have sustained an objection if one was made, but none was made; now then, Mr. Castle is asked what his o ocupation is in Madison County and he says operating a farm, I think that is proper.”

We do not consider that there was any error in these rulings.

The only other alleged error is the claim of Mr. and Mrs. Castle that the court erred in the giving of the second instruction, given at the request of Eugene Searles. In form this was a stock instruction on damages, generally given at the request of a plaintiff. The only fault found with such instruction is that it “authorized the jury in assessing damages in favor of the defendant to take into consideration whether or not the defendant has been permanently injured.” It is contended that there was no evidence whatever to support this instruction. So far as the point in question is concerned this instruction stated, “In determining the amount of such damages, if any, you have a right to and should take into consideration . . . the nature and extent of defendant’s injuries, if any, and whether or not he has been permanently injured so far as the same may be shown by a preponderance of the evidence to have directly resulted from the occurrence in question; ...”

The only physician who testified as to the injuries of Eugene Searles, on cross-examination, testified,— “As to his ability to do work, I think in this case this boy will recover, I don’t know the time required, but I would think this boy would make a complete recovery. ’ ’

Eugene Searles was aged 23 years and his occupation was that of a carpenter and painter. Other than a scar, the only injuries which he received have already been fairly and sufficiently described. The only description in the record of such scar is that immediately after the accident he had “a cut to the right of the chin about two inches long,” in which “about four stitches were taken,” the doctor testifying, — “I think the scar .on the chin is a permanent disfigurement.” Counsel for Eugene Searles contend this scar was such a permanent injury as to justify the giving of this instruction. With this contention we cannot agree. (See Chicago City Ry. v. Schaefer, 121 Ill. App. 334, 348; Cullen v. Higgins, 216 Ill. 78, 84.)

The instruction makes no direct reference to any scar. If such were the meaning and intent of the language quoted and complained of, then Stanly Castle and his wife are in no position to complain for the reason that at their request the court gave a similar stock instruction on damages, telling the jury they had a right “to take into consideration . . . any scars . . . he or she sustained. ...”

In Illinois Iron & Metal Co. v. Weber, 196 Ill. 526, a somewhat similar instruction was held error, and in Chicago v. Colman, 33 Ill. App. 557, a similar instruction was held error. In each of these cases there was a reversal, but not solely because of the giving of the particular instruction.

The giving of the instruction complained of in this case was error. This being the only error, and the verdict in our opinion not being excessive, we do not consider such error sufficient to justify a reversal.

Affirmed.


author: Mr. Justice Fulton

text:
    Louise Wallace, Administratrix of Estate of Frank W. Wallace, Deceased, Appellee, v. Earl Parnell, Appellant.
    Gen. No. 9,220.

      Opinion filed July 15, 1940.
    Oliver D. Mann, of Danville, C. F. Dyer, of Hoopeston, and Chas. F. Short, Jr., of Bloomington, for appellant; Arthur H. Shay, of Streator, of counsel.
    Steely, Steely, Graham & Dysert, of Danville, for appellee; Walter V. Dysert and H. M. Steely, Jr., of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

The defendant appellant, Earl Parnell, on July 13, 1939, at about the hour of 1:15 P.M. while driving an automobile over and along State Route No. 9, struck a car driven by one Frank Wallace, and as a result of such collision, Wallace was instantly killed. This action was brought by the plaintiff appellee, Louise Wallace, as administratrix, to recover damages for her husband’s death. A trial in the circuit court of Vermilion county resulted in a verdict by a jury in the amount of $6,500, in favor of the appellee. After motions for judgment notwithstanding the verdict and for a new trial had been overruled, the court entered judgment upon the verdict. This appeal seeks to reverse that judgment.

The complaint consisted of six counts charging the appellant with general negligence in the operation of his car; excessive speed; failure to have his automobile under control; failure to keep a proper lookout and violation of a speed limit of 35 miles per hour established by a highway sign in the vicinity of the scene of the accident.

Appellant filed an answer denying all of the charges of negligence contained in the complaint. The appellant also filed a counterclaim which was answered by appellee but no attention appears to have been paid to the same on the trial or on this appeal.

State Route No. 9, is a through two-lane highway running east and west along the south corporation line of the city of Hoopeston. Euclid avenue is a graveled street running north and south along the east corporate limits of the said city intersecting State Route No. 9, at its south end. Euclid avenue runs into State Route No. 9, but does not extend through to. the south; there was a stop sign on Euclid avenue about 20 feet back from the intersection.

The appellant, Parnell, was driving west on State Route No. 9, and Wallace was driving south on Euclid avenue. As Wallace drove into and upon the paved highway his car, a Model T Ford, was struck by the appellant’s automobile. The appellee’s witnesses consisting of the appellee, her son Bobby Wallace, age 12, and daughter Geraldine Wallace, age 9, testified that the decedent was driving with his daughter riding in the middle and his wife on the right-hand side of the front seat; that Bobby Wallace and a friend, Billy Decker, were riding in the back seat; that as they approached State Route No. .9, the father looked to the east and stopped his car before proceeding onto the pavement; that they were planning to turn east on the highway in order to reach a farm owned by Wallace southeast of Hoopeston; that after making the stop Wallace drove the car in first gear onto the highway and Mrs. Wallace stated that just after they had crossed the black line dividing the two lanes of the paved highway they were struck by appellant’s car. She was corroborated by the testimony of her son Bobby. He further testified that the appellant’s automobile was travelling down the highway from the east at a rate of 60 to 65 miles per hour.

The appellant, Parnell, was accompanied by his wife and testified that as he approached the intersection he slowed down to 30 to 35 miles per hour and that Wallace drove his Ford car right out on the highway in front of him; that he blew his horn, applied his brakes and turned to the right but could not avoid the accident. Both Parnell and his wife say that they saw Wallace approaching and that he did not stop before pulling onto the highway.

It will be seen from this brief digest of the testimony that there was a direct conflict in the testimony as to how the accident occurred.

The appellant insists that the appellee has not shown that her intestate was in the exercise of due care as he approached and entered upon State Route No. 9, and was therefore guilty of such contributory negligence as would bar recovery. It is a matter of common knowledge and practice that persons approaching a paved highway from a side street have a right to enter upon and use the highway as well as one travelling the pavement from a distance, and each party owes to the other the duty and obligation of exercising due care in his use of the said highway. While it is clear that no person can properly drive his car on the through route directly in the path of and in front of another car, in this case the jury had a right to take into consideration the fact, if it was a fact, that Wallace may have observed the coming automobile and believed that if it observed the speed law, he would have ample opportunity, with safety, to drive into the highway for the purpose of turning on the eastbound traffic lane before the other car arrived at the intersection.

The question of contributory negligence is one which is pre-eminently a fact for the consideration of the jury. In Thomas v. Buchanan, 357 Ill. 270, the court said,

“The question of due care on the part of the Plaintiffs intestate is always a question of fact to be submitted to a jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on the part of the deceased.” We do not feel that the record in this case would warrant a Court in concluding that the decedent was guilty of contributory negligence as a matter of law. The question of who is entitled to right of way always involves determination as to relative speeds and distances of automobiles from the intersection. Kirchoff et al. v. Van Scoy, 301 Ill. App. 366. Unless the action of a person is clearly and palpably negligent, it is not within the province of the court to substitute its judgment for that of the jury. Blumb v. Getz, 366 Ill. 273.

It is further contended by appellant that error was committed in submitting to the jury the following instruction on the part of appellee:

“The court instructs the jury that even though the defendant was driving his car west on a durable hard surfaced State Bead known as Route No. 9, which runs along the south side of the City of Hoopeston, and which intersects with Euclid avenue, a north and south street or highway which enters Route No. 9 from the north along the east side of the City of Hoopeston, and on the west side of which Euclid avenue and at the north right-of-way line of State Route No. 9 there was a stop sign erected and maintained by the Department of Highways requiring in such case, that vehicles entering upon or crossing said State Highway Route No. 9, to come to a full stop at or near the north right-of-way line of said State Highway as possible and regardless of direction, to give the right-of-way to vehicles on said State highway. Nevertheless, the State statute does not authorize such a driver of an automobile on the State Highway to take the right-of-way over an automobile approaching this intersection from the right on Euclid avenue with due care, who has first come to a full stop at said stop sign, and then with due care has actually entered said intersection and was first upon the State Highway in question.

“ So in this case, if such is the state of proof in this case the defendant did not have the right-of-way, and it was the duty of the defendant to approach and operate his automobile at such speed, and have it under such control, that it could be stopped or turned safely to the right or left, and thereby avoid a collision with said car first so having entered and actually upon said intersection, as soon as he saw it there, or, by the exercise of reasonable care, should have seen that it had first entered and was actually upon said crossing and intersection.”

It is insisted that this instruction is bad because it is argumentative and does not accurately define the law. We believe there is reason for complaint on both grounds. Where the evidence is conflicting and the case is a close one on the facts, great care should be taken in properly instructing the jury, and a failure so to do constitutes reversible error. South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456. A mere reading of the foregoing instruction demonstrates that it is argumentative and if that were its only defect, it might be debatable as to whether or not it was harmless error. However, in its present form, we feel that it might be misleading to the jury. This instruction tells the jury that a driver on the State Highway cannot take the right-of-way over an automobile approaching the intersection with due care if that driver has first come to a full stop at said stop sign and has then actually entered said intersection and was first upon the State Highway in question. This is not a correct statement of the law. In Riddle v. Mansager, 254 Ill. App. 68, the court had occasion to discuss the right-of-way of motorists at intersections. A very similar instruction in principle to the one in controversy here was tendered in that case. It told the jury, “that if they believed from the evidence that Streede was operating his automobile with ordinary care and reached and entered the intersection in question before Man-sager reached it, and Streede was driving his automobile with ordinary care as aforesaid, then Mansager was obliged to yield the right-of-way across the intersection to Streede.” The trial court modified the instruction by striking out the last clause and substituting the words, “it is your duty to consider (take) such facts, if you so find from the evidence, into consideration in determining the issues in this case.” The court said: “The instruction as tendered is not a correct statement of the law and even with the modification, it is incorrect. While it is always the duty of the jury to consider the facts in determining the issues, nevertheless, the instruction as tendered and as modified and given is misleading, because it suggests that the driver who first entered the intersection had the right-of-way. No such rule of law obtains.” The criticism directed against the foregoing instruction may just as forcibly be urged to the instruction complained of in this case. In commenting on instructions concerning right-of-way at intersections, the Supreme Court in Greene v. Noonan, 372 Ill. 286, said: “The Statute.as to right-of-way is clear. This instruction was confusing and not applicable to the admitted facts, but' leaves much to be determined as to the applicability of the act to a given state of facts.” and later, “While the rule is, as counsel for appellee argues, that the instructions will be viewed as a whole, yet, where instructions on an important feature in a case are inconsistent, so that the jury is unable to determine which is the law, error arises in giving the erroneous instruction.”

In the present case the question of the right-of-way at the intersection of Euclid avenue with State Route No. 9, was a very important feature of the case and it was necessary that the jury be accurately instructed as to the law governing the right-of-way at such intersection.

Because of our views on the instruction just discussed, we do not deem it necessary to pass upon the question of newly discovered evidence. Believing it was error for the court to give such instruction to the jury, the cause is reversed and remanded to the circuit court of Vermilion county for retrial.

Reversed and remanded.


author: Mr. Presiding Justice Riess

text:
    Violet Rohrer, Appellant, v. Byron Denton, Appellee.
    Gen. No. 9,245.

      Opinion filed July 15, 1940.

      Roy Geibe Hill and Charles C. McBrian, both of Springfield, for appellant.
    Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

Plaintiff appellant, Violet Rohrer, has appealed from an order of the circuit court of Sangamon county, Illinois, granting motion for a directed jury verdict in favor of defendant appellee, Byron Denton, which was entered at the close of plaintiff’s evidence in a suit seeking recovery of damages sustained by the plaintiff while riding as a guest passenger in an automobile owned and driven by the defendant.

The damages were alleged to have resulted from a collision which occurred on an 18 foot concrete State Highway with black center line, indicated as the Beardstown Road, at a point approximately 2 miles west of Springfield, Illinois, wherein defendant Den-ton’s car struck and collided with the rear end of another eastward bound car enroute from Beardstown to Springfield driven by one David Dillon, between the hours of three and four o ’clock in the morning of March 16, 1938. Defendant Denton’s car, a Lincoln Zephyr, at the time of the collision, appeared from the plaintiff’s evidence to have been traveling at a speed of 60 to 65 miles per hour in passing over a hill and down a slight slope and approaching a railroad underpass when it struck and collided with the right side of the rear end of the Dillon car, which was then traveling in the same direction at a speed of 35 miles per hour, thereby knocking the Dillon car forward and turning it over on to its side on the left part of the slab and facing in the opposite direction. The Denton car passed along the shoulder into a ditch on the right side of the highway and struck an embankment, resulting in serious injuries to the plaintiff which required extended hospital and surgical treatments of several months’ duration and caused alleged permanent disabilities.

The complaint consisted of five counts, the first of which was stricken, the others amended, and two counts were added. All of the counts alleged and the evidence tended to show that the plaintiff, who was a stenographer aged 18 years, was riding as a guest passenger in the rear seat of defendant’s automobile, and each count charged the injuries to have proximately resulted from the wanton and wilful misconduct of the defendant at and immediately before the time of the accident and also alleged the exercise of due care by the plaintiff.

The second amended count set forth in substance that the defendant, with a conscious disregard of the fact that visibility of other vehicles using said highway was poor because it was before daylight in the morning and'that there were fog banks at various low places in the highway and at the point of collision, wilfully and wantonly drove his car at 60 miles per hour over the crest of the hill and down the slope thereof and ran into the rear end of the Dillon automobile as above set forth.

The third count charged that defendant was not feeling well, was sleepy, his mental faculties impaired and his nervous reactions retarded so as to make the operation of his motor vehicle unsafe, and that in conscious disregard of these alleged facts, defendant wilfully and wantonly so drove his automobile into the Dillon ear and injured the plaintiff.

The fourth count cites and quotes a portion of sec. 154, ch. 95½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.186], concerning rule requiring the driver of a vehicle overtaking another vehicle proceeding in the same direction to pass to the left thereof at a safe distance, and charged the defendant with attempting to pass the Dillon automobile at a high rate of speed in violation of said statute by driving off of the pavement on the righthand shoulder and striking the right rear end of the Dillon car, as above stated.

In the fifth count it was charged that the defendant was driving his automobile in the nighttime; that there was fog along the highway through which lights would penetrate but a few feet; that the paved part of the highway was wet and slippery; that it was the duty of the defendant to drive his car at a rate of speed that would enable him to control it under the circumstances and avoid collisions with other persons and vehicles using the highway and that in conscious knowledge and disregard of which conditions, injuries would naturally and„probably result to the life, person and property of others, including the plaintiff and passengers, and that with conscious indifference to surrounding circumstances, he wilfully drove his car at a dangerous rate of speed in excess of 60 miles an hour and suddenly turned to the right in an attempt to pass the Dillon car and so struck and passed the same, skidding on the wet and slippery shoulder and into the ditch, and wilfully and wantonly injured the plaintiff.

The added count six charged wanton and wilful injury growing out of defendant’s alleged knowledge of being ill, tired and sleepy, and with impaired mental faculties and retarded nervous reactions and with wilful disregard of the consequence thereof in driving the car, although requested to permit others to drive; in not driving slowly on the wet pavement and through the fog, and driving at a speed that was not reasonably safe under the circumstances, to wit: 60 miles an hour, and by such alleged wilful and wanton misconduct, striking the Dillon automobile and injuring the plaintiff, as alleged in the other counts.

Count seven charged violation of the statute in wilfully injuring the plaintiff as a guest passenger with knowledge that the highway at the point of collision was of sufficient width for only two lines of moving traffic ; that a motor vehicle was in front of him traveling in the same direction, in not attempting to turn to the left and with knowledge that his conduct would naturally and probably result in injury to the passengers and in wilful disregard of the consequences, violated the statute in attempting to pass on the right side of the other car, resulting in the rear-end collision and resultant injuries as alleged.

Defendant, in his answer, denied all allegations of wanton and wilful misconduct on his part or that the same proximately caused plaintiff’s injuries and affirmatively alleged that the plaintiff knew all the facts and circumstances alleged and that if the defendant was guilty of wilful misconduct, the plaintiff was guilty in the same degree in continuing to ride in his automobile and could not recover.

Much space is given in defendant appellee’s brief to the contention that if defendant was guilty of wanton and wilful misconduct, plaintiff was equally guilty and therefore could not recover; that excessive speed alone is not proof of wanton and wilful misconduct; that plaintiff wilfully permitted herself to fall asleep, and that there was no proof of the presence of fog along the highway at the point of collision.

It appears from the evidence that at the time of the collision in question, the plaintiff was employed by the defendant in his drugstore and place of business in Springfield; that during the course of the preceding evening, the defendant, accompanied by his wife in the front seat and the plaintiff and another young woman as invited, guests riding in the rear seat of the defendant’s car, drove at about 9:00 or 9:30 P. M. from Springfield to Beardstown, where the defendant had some business to transact in the drugstore of his father, after which the party began their return trip and stopped at the request of defendant’s wife at the Beardstown’s Country Club, where they met friends and some dancing and social intercourse was engaged in; that at about 2:30 or 3:00 o’clock A. M. they entered defendant’s car to return to Springfield; that defendant was suffering from a cold and that both his wife and the accompanying guest offered to drive, but that defendant preferred to and did drive the car, and that the rate of speed at which he was driving was objected to by all other occupants of the car and was then decreased to what is spoken of as “a comfortable rate of speed”; that the plaintiff then went to sleep in the rear seat and did not awaken until immediately before the collision; that before the car struck, defendant’s wife had indicated to the defendant the speed of 60 to 65 miles per hour registered on the speedometer, but that he shook his head and continued over a slight hill and downward slope, when he crashed into the rear end of the Dillon car.

The defendant’s contention that the plaintiff had full knowledge of defendant’s misconduct, if any, proximately resulting in the injuries, which precludes her from recovery under the above facts is not tenable. It appears in the evidence, as indicated, that the plaintiff and other occupants of the car protested to the defendant concerning the rate of speed after leaving the country club, which resulted in his slowing down the car to “a comfortable rate of speed”; thus allaying plaintiff’s fears, after which she fell asleep and did not awaken until she had arrived within 50 to 75 feet of the crash is not such evidence or proof of acts of equally wilful misconduct, if any, on the part of the plaintiff and defendant contributing to her injury, that would justify the trial court in so finding as a matter of law, in view of all the surrounding facts and circumstances so appearing in evidence together with reasonable inferences therefrom.

At and immediately before the collision, the evidence of the relative rate of speed of the two cars, the incline over which they were passing at the time, the manner in which the defendant’s car struck the Dillon car, his apparent failure to observe the same or to pass or make any effort to pass along the open highway to the left of the Dillon car either prior to or to avoid the crash, before which time the defendant’s wife had tapped on the speedometer and called his attention to the rate of speed of the car driven by and under the control of the defendant, were all facts and circumstances which it became the peculiar province of the jury to- weigh and consider in determining whether or not the defendant was guilty of wilful and wanton misconduct at and immediately prior to the time of the collision which caused the plaintiff’s injuries. Streeter v. Humrichouse, 357 Ill. 234,191N. E. 684.

Failure to discover danger through recklessness or carelessness, when it could have been discovered by the exercise of ordinary care, may oftentimes be considered wilful or wanton negligence. Layton v. Ogonoski, 256 Ill. App. 461. And where the omission to exercise care is so gross that it shows a lack of regard for the safety of others it will justify the presumption of wilfulness or wantonness. Whether an act is wilful or wanton is greatly dependent upon the particular circumstances of each case. Barmann v. McConachie, 289 Ill. App. 196, 201, 6 N. E. (2d) 918; Bernier v. Illinois Cent. R. Co., 296 Ill. 464,129 N. E. 747. In the Barmann case, supra, recovery was sustained under the guest statute charging wanton and wilful conduct by the defendant, wherein the plaintiff, a young woman, had fallen asleep in his automobile prior to the time of her injuries.

While there was no evidence of the presence of fog or of a wet pavement at the immediate point of the collision, there were sufficient facts well pleaded in several counts of the amended complaint upon which issue was joined and responsive evidence heard to require that the court submit such issues of fact to the jury under the evidence and circumstances in evidence, and we hold that the motion fora directed verdict should not have been allowed nor the instruction given.

In order to warrant a trial court in directing a verdict for the defendant, it must appear that there is no evidence fairly tending to prove the plaintiff’s case. The court, in considering the motion, is strictly limited to determining this fact and this alone. He may not weigh the evidence, as to do so would encroach upon the province of the jury, who are judges of the fact. McCarty v. O. H. Yates & Co., 294 Ill. App. 474, 14 N. E. (2d) 254 Blumb v. Getz, 366 Ill. 273, 8 N. E. (2d) 620. Whether a personal injury has been inflicted wilfully or wantonly is a question of fact to be determined by the jury if there is evidence to support the allegation, and whether an act is wanton and wilful depends upon the circumstances of each case. Streeter v. Humrichouse, supra.

For the reasons herein given, the cause is reversed and remanded for retrial in accordance with the holdings herein.

Reversed and remanded.


author: Justice Fulton.

text:
    Charles L. Matthews, Administrator of Estate of George W. Solomon, Deceased, Appellant, v. Franklin Life Insurance Company of Springfield, Appellee.
    Gen. No. 9,226.
    opinion filed July 15, 1940.
    L. G. Pefferle, for appellant; James O. Jones and Lawrence Hoff, for appellee.
   Opinion by

Justice Fulton.

“Not to he published in full.’’