author: MR. PRESIDING JUSTICE ENGLISH McCORMICK, J.,

text:
    David Bernier, Administrator of the Estate of Geraldine Bernier, Deceased, Plaintiff-Appellant, v. Barbara Skripek, Defendant-Appellee.
    Gen. No. 50,014.
    First District, Fourth Division.
    August 7, 1967.
    Rehearing denied September 19,1967.

      McCORMICK, J., dissenting.
    Murphy and Murphy, of Chicago (Jerome T. Murphy, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (David Jacker, Francis B. Libbe, and Alan H. Swanson, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Action was brought by plaintiff, as Administrator of the Estate of Geraldine Bernier, his wife, who died as a. result of injuries sustained when the automobile in which she was riding as a guest collided with a guardrail or bridge abutment situated adjacent to the street on which the vehicle was being driven by defendant. At the close of plaintiff’s case, the trial judge directed a verdict in favor of defendant. Motions by plaintiff for judgment notwithstanding the verdict and for a new trial were denied. The only point raised on appeal is that it was error for the court to have directed the verdict.

On the issue of liability there were only three witnesses: a service station attendant, a State Trooper, and defendant (called as a witness under section 60 of the Civil Practice Act). There follows their testimony:

Defendant, Barbara Skripek

Deceased arrived at defendant’s home in the late afternoon on September 21,1957. At approximately 5:30 p. m., deceased, defendant, and defendant’s brother, William, left the Skripek home in Roseland and rode with William in his 1956 Pontiac to the home of his friend located at 88th Street and Cottage Grove. At that point William left the car and defendant moved into the driver’s seat. The girls planned to visit defendant’s sister who lived at 4501 West 180th Street. They arrived there at about 7:30 p. m., had coffee and cake, and stayed until 10:45 p. m. Defendant and deceased then left in the Pontiac for the long ride home, with defendant driving. Defendant was familiar with the car, having driven it two or three times a week during the six or eight months her brother had owned it.

The evening was dark, but clear. Defendant had driven home from her sister’s house on six or seven prior occasions, and had been in the habit of taking Cicero Avenue north to 127th Street and then going east on 127th Street to State Street which ran close to her residence in Rose-land. On the evening of the occurrence, however, defendant changed her route and proceeded east on 180th Street until she came to a dead end. She then turned right and proceeded south to 187th Street where she again turned right and headed west. By this time defendant had completely lost her bearings. She had never driven in the area into which her new route took her, and to add further to her confusion the streets in the neighborhood turned and wound around. All prior visits to her sister’s home had been in the daytime and she had never driven home from there at night. Another right turn headed defendant in a northerly direction until she arrived at an intersection where there was a gas station. Defendant drove into the gas station and asked the attendant for directions back to Roseland. He informed her that she was then on the southeast corner of 127th Street and Harlem, a substantial distance west of her home.

When defendant pulled out of the gas station, she turned east on 127th Street, accelerating the car gradually. She did not try to get speed quickly. The two girls were conversing and the car radio was turned on. The headlights were functioning normally at low beam and defendant could see a distance of fifty to seventy-five feet ahead. The highway was unlighted. Defendant drove in the center lane of the two eastbound lanes after leaving the gas station, with her left wheels either on or “very slightly over” the center line of the road. Being unfamiliar with the road, she felt safer in that lane. There was no traffic in front of or behind defendant’s car and nothing obstructed her view of the road, which was made of concrete. Defendant was not confused after learning the way at the gas station, although she had been confused prior to that time. She had been driving with the headlights on high beam but lowered them on entering the gas station and did not raise them again. She was not late for anything, and was in no hurry to get home. She had her hands on the wheel at all times after leaving the gas station until hitting the guardrail. At no time did she lose control of the vehicle. She was looking straight ahead after leaving the gas station and never took her eyes off the road. She was not distracted by anything. She could see the right-hand edge of the pavement, but did not observe that the highway narrowed. She saw no traffic signs.

Deceased asked defendant to move from the center lane “over closer to the right-hand side of the road, because she would feel safer and more comfortable” if she did so. To satisfy deceased, defendant moved the car to the right, but she did not swerve the wheel very quickly or suddenly. The impact with the guardrail occurred a split second thereafter. At the time of impact, defendant’s car was proceeding at a speed between 25 and 35 miles per hour. Defendant had her foot on the accelerator continuously, and never applied the brake after leaving the gas station, although she could not recall whether her foot was on the accelerator at the time of the impact. She never saw the guardrail.

Gerald Grosskwrth, an Illinois State Trooper

He arrived at the accident scene shortly after the occurrence. Both girls were still in the Pontiac and both were injured. The car was a few feet from a guardrail protecting a culvert about a block east of Harlem on 127th Street. The right front fender of the car had collided with the guardrail. The car was facing in a southeasterly direction. He did not see any skid marks. As 127th Street moves east from Harlem, it narrows down at this culvert or guardrail. West of the culvert it is four lanes wide. East of the culvert it is two lanes wide. “The place where the highway narrows down from four lanes to two lanes is right up close to the culvert. As you are eastbound, the road narrows immediately in front of the culvert. Anyone driving in the outside lane, that is, the lane closest to the edge of the road, as they approach from the west going east — approach the culvert and guardrail — would have to move to the left or smash right into the guard rail.” There was no obstruction to the center lane.

There were no street lights. There were no signs from Harlem to the culvert, such as “Pavement Narrows,” “Road Merges,” or the like. There was a center line down the middle of the road. Photographs in evidence (defendant’s exhibits 1 and 2, admitted by stipulation), show a series of four posts with metal diagonally-striped warning-type signs along the south side of the road west of the guardrail. Those signs were not there on the night of the accident. The concrete base of the guardrail is off the edge of the pavement, maybe two feet.

Testifying as to a conversation with the defendant shortly after and at the scene of the occurrence, this witness said that she was obviously injured and “disoriented” ; and that with regard to the occurrence she told him she was confused and didn’t know what happened. An ambulance came within five minutes, taking defendant and deceased to the hospital. On cross-examination Grosskurth said that defendant “admittedly was confused,” although he did not recall “if she specifically used ‘confused’ or whether she substituted another word.” He also did not recall if she said “whether she was confused at the time of the accident or confused earlier, such as being lost.”

Thomas J. Crawford

On the night of the accident, he was helping his son operate a gas station on the southeast corner of 127 Street and Harlem Avenue. The first he knew of the accident was when he heard a big noise and crash. He then saw that a car had crashed the railing of the bridge. The distance from the gas station driveway to the guardrail was approximately 300 feet — not a full block — and the lights from the station shone out almost to the bridge railing. 127th Street is four lanes wide east of Harlem. The wide pavement stops “just to the west of the bridge, right near the bridge.” It is a two-lane road all the way through, only at the intersection of Harlem it is four lanes. “After you get down about 100 yards, you come to the guardrail and the road narrows before it hits the bridge. After you cross the bridge it is then two lanes wide. When I looked down there that evening I didn’t see any lights or reflectors.” The car had moved from a brightly lighted area into the darkness of night.

(This witness testified on direct examination that he had determined from the sound of the motor as defendant’s car had pulled out of the station that it was going fast. On cross-examination, however, he admitted that he had heard motors roar when the cars weren’t even moving “so that the sound of the motor does not tell me how fast the car is going.” He also admitted that he had not seen the car leave, stating, “I did not watch it going down the road, so I have no idea how fast it went.” On motion of defendant, the court then struck all this witness’ remarks on speed, and instructed the jury to disregard them.)

A cause of action against an automobile driver accrues to a guest occupant only if the guest sustains injuries caused by the wilful and wanton misconduct of the driver. Ill Rev Stats 1965, c 95%, § 9-201. The statute, however, does not define the term “wilful and wanton misconduct.” Most opinions dealing with this subject contain a statement similar to the one found in Bering v. Hilton, 12 Ill2d 559, 562, 147 NE2d 311, where the court said, “Wilful and wanton misconduct has been defined in myriads of cases, each one reiterating or embellishing the phraseology of its predecessors.” Customarily there then follows a definition of the term with more or less restrained reiteration or embellishment. We shall refrain altogether from drafting our own definition, partly because we have nothing new to offer in such a delineation, but, more importantly, because the skilled draftsmen of the committee which prepared IPX collected and studied the “myriads of cases” and distilled their language into a terse, but all-inclusive definition which we are happy to adopt. We consider it particularly appropriate in the instant case, because the IPX definition instruction would undoubtedly have been given to the jury and would have governed its deliberation if the court had not directed a verdict.

Tailoring the IPX definition to fit the case before us by eliminating the clause covering intentional injury, the instruction (14.01) reads:

When I use the expression “wilful and wanton conduct” I mean a course of action which shows an utter indifference to or conscious disregard for a person’s own safety and the safety of others.

Our task, therefore, is to examine the proof in comparison with this standard; and, in so doing, we have no difficulty concluding that plaintiff’s proof falls way short of the stated requirement, and that the trial judge performed his duty correctly in directing a verdict for defendant. Far from acting with “utter indifference to” or “consciom disregard for” the safety of her passenger, defendant was attempting to move one-car width to the adjoining lane, at the request of her passenger, and for the express purpose of enhancing the latter’s feeling of safety. She had moved to the right less than a car width, in fact only a few feet, when the collision occurred. Ironically, if defendant had continued to drive in the lane which she herself had originally selected, this tragic occurrence would never have taken place. Attempting to comply with her friend’s suggestion, however, she steered the car, without swerving .quickly or suddenly, and without losing control of the car, into what she, and obviously her passenger also, expected would be the outside lane of the highway. Their expectations were not reckless or thoughtless, because defendant could see the right-hand edge of the pavement and there were no signs or markers indicating that they were about to come to an abrupt narrowing of the road. Nor did the bridge abutment bear any lights, or even reflectors, to indicate in the dark night the deadly obstruction which lay ahead and which defendant never saw. Speed is not a factor in this case, since the statements of the gas station attendant on this subject were all stricken, and an uncontradicted speed of 25 to 35 miles per hour under the circumstances is not evidence of wilful and wanton misconduct. It was truly a horrible coincidence that at the very moment when defendant moved the car the short distance to the right to get into the adjoining lane, this lane of pavement, without warning of any kind, ceased to exist. The evidence is uncontroverted that the outside lane terminated directly in front of the culvert or bridge, and that a car moving in that lane at that point would “smash right into the guardrail.” Unfortunately, that is precisely what happened in this case under circumstances which we believe make it very doubtful that there is any proof of ordinary negligence on the part of the driver, let alone wilful and wanton misconduct.

The correctness of the trial judge’s decision in directing the verdict — and ours in agreeing that he was right in doing so — must be gauged by the rule recently declared by the Supreme Court in Pedrick v. Peoria & E. Ry. Co., 37Ill2d 494, 229 NE2d 504. There, the court said that a verdict should be directed if “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Strictly construed, this might still leave the question open as to when - a verdict will be permitted to stand. Considering the nature of the court’s opinion, however, we believe that the pronouncement as made was intended to contain within itself the standard for solution to the entire problem. Consequently, we conclude that a verdict in favor of one party cannot stand when the evidence, viewed in its aspect most favorable to such party, overwhelmingly favors the other party. Such a verdict would therefore be set aside by judgment notwithstanding the verdict, or, if the question were to be presented in advance, by directed verdict.

Applying this test (or any of the tests set forth in the Illinois cases prior to Pedrick), we find that all the evidence on liability, which we have outlined above, when considered in its aspect most favorable to plaintiff, overwhelmingly demonstrates that defendant was not guilty of wilful and wanton misconduct. In this circumstance, it was not merely a proper exercise of the trial court’s discretion, but, rather, its duty to withdraw the case from the jury’s consideration. Fosdick v. Servis, 40 Ill App2d 363, 367, 189 NE2d 538.

Because of the variety in the factual situations of cases approving or rejecting findings of wilful and wanton conduct, the authorities cited to us are of less than ordinary value. This is no doubt due to the infrequency with which cases involving wilful and wanton conduct reach the courts, in comparison with cases charging negligence.

Cases which were concerned with single vehicles striking obstructions (trees, posts, guardrails, embankment, etc.) off the side of the road include Pritchett v. Rich, 14 Ill App2d 215, 144 NE2d 173; Joiner v. Birch, 21 Ill App2d 249, 157 NE2d 676; Clarke v. Storchak, 384 Ill 564, 52 NE2d 229; Fosdick v. Servis, 40 Ill App2d 363, 189 NE2d 538; Bartolucci v. Falleti, 382 Ill 168, 46 NE 2d 980. Also, see Ficht v. Niedert Motor Service, Inc., 34 Ill App2d 360, 181 NE2d 386, which involved the collision of two moving vehicles. In each of these cases there were factors involved which would seem to weigh much more heavily on the plaintiff’s side of the case than anything to be found in the case at bar (e. g., speeds up to 55 miles per hour, icy road conditions, familiarity with the road, loss of control of the car, rain, and wet pavement), yet all the decisions held that the trial court properly had, or should have, taken the case from the jury. As precedents, these are all a fortiori situations, and yet all the reviewing courts concluded that there was a fatal lack of proof that the defendant had been conscious that his conduct would probably result in injury to anyone, or that he had exhibited a conscious or reckless indifference to consequences.

On the other hand, the cases cited to us which do find wilful and wanton conduct are all based upon much stronger facts. The defendant in Myers v. Krajefska, 8 Ill2d 322, 134 NE2d 277, had been drinking; he drove in mist and rain on a slick pavement, at 50 to 60 miles per hour; he saw signs and flares along the side of the road indicating a detour ahead; and he skidded nine-car lengths through a barricade into a gravel hopper. In Robinson v. Workman, 9 Ill2d 420, 137 NE2d 804, there was evidence that defendant was driving at 45 to 50 miles per hour and weaving from one side of the road to the other just before his car crashed in a head-on collision. Hatfield v. Noble, 41 Ill App2d 112, 190 NE2d 391, concerned a defendant who drive 80 miles per hour on a misty, rainy night over a road which he knew had many curves. He had also consumed twelve glasses of beer.

Smith v. Polukey, 22 Ill App2d 238, 160 NE2d 508, is another two-car intersection collision case in which the defendant saw the other car 200 feet away, was warned by the plaintiff’s screams, and yet continued to accelerate to 60 miles per hour (in a 40-mile zone) prior to impact. In Schneiderman v. Interstate Transit Lines, 394 Ill 569, 69 NE2d 293, the defendant also had knowledge of impending danger before driving a bus through a red light at an intersection. Willmann v. Jargon, 37 Ill App2d 380, 185 NE2d 702, was a case in which the defendant attempted to pass the vehicle ahead of him, even though he had a clear view of the road and knew he was approaching a curve.

In Bering v. Hilton, 12 Ill2d 559, 147 NE2d 311, the defendant, driving a dump truck on a side road, stopped at a traffic sign upon reaching a through highway. He saw plaintiff’s car approaching, but looked no more in that direction, judging that he could complete his cross ahead of it. He failed to do so, and a collision resulted. Gaiennie v. Fringer, 5 Ill App2d 403, 5 NE2d 38, also involved a defendant who stopped at a stop sign and then, without looking in either direction, drove onto the preferential highway. Rosbottom v. Hensley, 61 Ill App2d 198, 209 NE2d 655, was a case in which the defendant driver turned her head around to talk to a friend in the back seat, lost control of the car, and drove off the road into a tree.

The facts in all these cases are, in our opinion, so different from those in the case before us that they are of no weight whatsoever in plaintiff’s favor.

In conclusion, we deem it important to restate that “wilful and wanton misconduct is a more serious transgression than is negligence, and that an important distinction is in the mental attitude. Often negligence may consist of a mere inadvertence, or a momentary lapse from that degree of attentiveness required by due care. On the other hand, it is frequently said that a wanton act involves a conscious indifference to a known danger. It is based on the concept that, under the known or plainly observable circumstances, the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation, and ignored it.” Martin v. Cline, 15 Ill App2d 269, 273, 145 NE2d 505. If we were to hold that the evidence in the instant case was sufficient to go to the jury on the issue of wilful and wanton misconduct, we would be eliminating the very real difference between such conduct and ordinary negligence, thus merging the two concepts into one. And to do that would defeat the obvious legislative purpose of the guest statute. Todd v. Borowski, 25 Ill App2d 367, 375, 166 NE2d 296.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, J., concurs.

McCORMICK, J.,

dissenting.

In this dissenting opinion I will first quote from a Comment in 54 Northwestern University Law Review, page 263, which is a reappraisal of the Illinois Guest Statute in which it is pointed out that the Guest Statute substituted the test of “wilful and wanton” misconduct as the standard to be applied in determining duties and liabilities in the guest-host relationship. It discusses the way in which the Illinois courts have dealt with the statute and quotes from Myers v. Krajefska, 8 Ill2d 322, 329, 134 NE2d 277, where the court said:

“. . . [wilful and wanton misconduct] is generally considered in that area of fault between ordinary negligence and actual malice. In view of the fact that it is a matter of degree a hard and thin line definition should not be attempted.”

The reappraisal further points out (at page 271):

“Because of the ever-increasing number of insured motorists today, the real defendant in an automobile negligence suit is the insurer. Thus, it is no longer the host who must be protected by statute to insure fairness. In fact, the uninsured motorist whom the statute originally protected is now in general disrepute and should not be the object of protection. In general, the only way in which the insured motorist can be pecuniarily damaged is through increased premiums due to multiple actions brought against him, indicating a poor insurance risk.”

The Comment states that the Illinois courts have interpreted the statute to defeat what was apparently originally intended, by elevating to wanton, acts which are merely gross negligence, and that such interpretation would cause insurers to settle cases rather than face a jury verdict. However, no matter whether the decisions of the court might indicate judicial dissatisfaction with the purposes of the statute, it might be said that the courts are merely restating the definition which they first pronounced prior to the Guest Statute. It is stated: “It is to be presumed that the legislature was aware of the court’s interpretation of those terms when it used them in the act. Unless the legislature anticipated a new definition of the concept in line with the purposes of the act, the Guest Statute in Illinois is no less than what was intended.”

The Comment also considers that question of why the insurer should receive the benefit which the statute is designed to confer. One reason advanced for the adoption of the statute was the ultimate saving to the person purchasing insurance, since every verdict obtained by an injured passenger increases the premium paid by the automobile owning public. It continues (at pages 273-274):

“However, the economic utility of the lowest possible insurance rates must be balanced against the social disutility of uncompensated victims. If present day theories of liability are economically incapable of providing the protection desired, alternatives must be found.”

The Comment concludes by saying at page 274:

“In addition, the Guest Statutes in general have not succeeded in securing fairness to either host or guest, but rather have substantially benefitted insurers at the expense of both parties. The uncertainty and subjectivity of the standard of 'fairness' negatives whatever attributes it may have. Nor can this substantial benefit to the insurer be justified on the basis of fear of collusion. Thus, it is suggested that aside from any alternatives which may be available, the Guest Statute no longer can be rationalized with the same arguments used by proponents a generation ago. When this factor is combined with trends in tort law it becomes fairly clear that some step must be taken to assure greater protection to potential victims of the ever-growing number of motor-vehicle owners and operators.”

A comparatively recent case dealing with and analyzing the statute is Bering v. Hilton, 12 Ill2d 559, 147 NE2d 311. Mary Bering appealed from a judgment of the Appellate Court (13 Ill App2d 132, 140 NE2d 737) which reversed a judgment of the circuit court entered on a jury verdict allowing the plaintiff $7,000 as damages for personal injuries sustained in a collision between the plaintiff’s automobile and the truck driven by defendant. Plaintiff’s suit for damages was originally predicated on a single count charging defendant with wilful and wanton conduct. Defendant’s motion for a directed verdict on the wilful and wanton count was denied, and the Appellate Court, considering only the propriety of the trial court’s denial of the directed verdict on the wilful and wanton count, reversed the cause and held that the defendant was not guilty of such conduct as a matter of law. The Supreme Court said at page 562:

“Wilful and wanton misconduct has been defined in myriads of cases, each one reiterating or embellishing the phraseology of its predecessors. [Citing cases.] One often quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill 569, at p 583: ‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.’ In the recent case of Myers v. Krajefska, 8 Ill2d 322, this court refused to overrule that definition. The court noted that although there are some variations in the phraseology of the definitions of wilful and wanton misconduct in the cases, the basic concept as applied in the case law is the same, and since such conduct is usually a matter of degree, no hard-and-thin-line definition could be made.”

The court further laid down the ordinary rule that in determining whether the wilful and wanton count should have been submitted to the jury, the defendant’s conduct must be measured by the standard which the court previously laid down, and that there can be no conflict in the evidence considered, nor its weight or preponderance, nor the credibility of witnesses, but the court must take that evidence as true which is most favorable to plaintiff’s cause of action. The court stated: “If such evidence and its intendments most favorable to plaintiff tend to establish wilful and wanton misconduct by defendant, then defendant’s motion for a directed verdict was properly denied.”

The court then discussed the evidence which indicated that the defendant proceeded into a preferred highway, failing to heed the warning of plaintiff’s horn, and merely accelerated his speed so that the cars collided in about the center of the intersection. The court also called attention to the fact that the defendant argued that his action in driving ahead amounted only to an error of judgment rather than to wilful and wanton misconduct. The court said, at page 564:

“With this we cannot agree. Labelling the conduct ‘an error of judgment’ does not free it from the taint of wilful and wanton misconduct, but merely begs the question, for practically all such collisions could be attributed to errors of judgment, and the query in each case is whether such error of judgment was in disregard of dangers which should have been apparent to a reasonable man. ... ; it is sufficient if he had notice which would alert a reasonable man that substantial danger was involved, and that he failed to take reasonable precautions under the circumstances.”

The judgment of the Appellate Court was reversed and the cause remanded to the Appellate Court with directions to consider the wilful and wanton issue in the light of the analysis set out in the case.

In Hatfield v. Noble, 41 Ill App2d 112, 118, 190 NE2d 391, the rule is laid down:

“For an act to be wilful and wanton, the defendant need not have intended that any harm should ensue, nor actually know for sure that there would be any harm done. It is sufficient if he had notice which would alert a reasonable man that substantial danger was involved and failed to take reasonable precautions under the circumstances. Hering v. Hilton, 12 Ill2d 559, 147 NE2d 311.”

In Rosbottom v. Hensley, 61 Ill App2d 198, 209 NE2d 655, the court discussed at considerable length the elements of wilful and wanton conduct which would give rise to the liability of the driver of an automobile to a guest-occupant. The defendant argued that there was no showing that the defendant had knowledge or consciousness that her conduct would be likely to result in injury, and that as a matter of law it should be held that she could not be guilty of wilful and wanton conduct. The court, at page 207, cited Gaiennie v. Fringer, 5 Ill App 2d 403, 126 NE2d 38, in which case the defendant had stopped at a highway stop sign, started forward, then drove 30 feet into the preferential highway without looking to the right or left. A guest-occupant warned defendant of the automobile approaching from the right, but defendant neither looked, stopped his car, or accelerated his vehicle to cross ahead of it. The court held it was a question for the jury and took the view that the defendant should be conscious from his knowledge of the surrounding circumstances that his conduct would naturally and probably result in injury.

The court, at pages 207-208, also cited Johnson v. Chicago N. W. Ry. Co., 9 Ill App2d 340, 132 NE2d 678, in which case the defendant grandmother drove her car with her granddaughter as an occupant onto a railroad crossing while the signals were operating and the approaching train was clearly visible, and she stopped the car. The court said there could be no claim of error of judgment where a person fails to discover the danger, or discovers the danger and ignores it. In answer to the argument that actual knowledge by the defendant was an essential element in proving wilful and wanton misconduct, the court quoted from Stephens v. Weigel, 336 Ill App 36, 82 NE2d 697, as follows:

“ ‘It is not necessary, however, that defendant intend that plaintiff should be injured by reason of his acts, nor is it necessary that the defendant actually know the dangers to which plaintiff is exposed. It is sufficient if he has notice which would alert a reasonably prudent man, and he does not take reasonable precautions under the circumstances.’ ”

The court affirmed the trial court in its refusal to direct a verdict or to grant a judgment notwithstanding the verdict, and discussed various cases from other jurisdictions, laying down the rule that if there is any evidence in the record showing such a gross want of care as indicates a wilful disregard of consequences it is a question of fact for the jury. Citing Walldren Express & Van Co. v. Krug, 291 Ill 472,126 NE 97, the court said, at page 211:

“While this opinion did not relate to the situation of a guest under the statute, that language has been employed in guest cases. Johnson v. Chicago & N. W. Ry. Co., 9 Ill App2d 340 at 355, 132 NE2d 678.”

The court further stated (at page 212) what is regarded as the generally accepted rule that

“Whether an act is wilful or wanton is greatly dependent upon the particular circumstances in the case and normally it is the peculiar province of the jury to weigh and try the evidence. Todd v. Borowski, 25 Ill App2d 367, at 375, 166 NE2d 296.
“As stated in Lessen v. Allison, 25 Ill App2d 395, 166 NE2d 806, the opinions of the Supreme and Appellate Courts in this State indicated that it is an exceptional case where the question of wilful and wanton misconduct ... is not a question for the jury.”

The court held that there was sufficient evidence for the case to go to the jury.

In the case before us the defendant in her testimony estimated that, from the feel of the car, the speed at which she was driving was about 25 to 35 miles an hour, but that she did not look at the speedometer. There was testimony in the record (which, in the opinion of the writer of this dissent, was not properly stricken) that the station attendant, Crawford, had noticed the car went very fast when it was leaving the station. The fact of speed is corroborated by the defendant’s statement that she accelerated her speed from the time she pulled out of the station, that she had her foot on the gas at all times and was gaining speed as she proceeded east on 127th Street, and that at no time before the impact with the guardrail did she put on the brakes. She further testified that she had not put on her bright lights; that with the low lights she could see ahead 50 to 75 feet; that she traveled approximately 300 feet east of the edge of the station before the accident occurred, and that she was able to see the pavement of 127th Street and the south edge of it, but that she did not observe that the roadway narrowed, nor that there was a culvert within two feet of the edge of the road. She stated that she was driving with the left wheels of her car in the center of the road, or slightly over the center; that the decedent asked her to move to the right, and she moved the car across a space of pavement wide enough to accommodate two cars and approximately two feet beyond the pavement, to contact the guardrail. There was testimony in the record that the right front end of the car and the west end of the guardrail were extensively damaged.

These facts, together with the testimony as to the width of the road, are sufficient evidence favorable to plaintiff’s cause of action when considered with the inferences which might properly be drawn therefrom to support the allegations of the complaint. The direction of a verdict was error. Under this evidence it certainly could not be said that all reasonable men would agree that the acts of the defendant would not be a failure to discover danger through negligence or carelessness when it could have been discovered by the exercise of ordinary care.

In Martin v. Cline, 15 Ill App2d 269, 273, 145 NE2d 505, the court said:

“It is, of course, difficult to lay down a general rule by which we may determine what type of conduct the law considers to be wilful and wanton misconduct. However, it may be stated generally that wilful and wanton misconduct is a more serious transgression than is negligence, and that an important distinction is in the mental attitude. Often negligence may consist of a mere inadvertence, or a momentary lapse from that degree of attentiveness required by due care. On the other hand, it is frequently said that a wanton act involves a conscious indifference to a known danger. It is based on the concept that, under the known or plainly observable circumstances, the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation, and ignored it.
“Ill will is not a necessary element, that is, there need not be an intention to cause harm. But if one knows, or should know by reason of surrounding circumstances, that the safety of another is in peril as a result of what he does or does not do, and he intentionally ignores this fact and does not regulate his conduct in accordance with such knowledge then such a conscious indifference to consequences does not constitute wilfulness. [Citing cases.] ”

In Larson v. Harris, 77 Ill App2d 430, 435, 222 NE 2d 566, the court, in affirming the trial court which submitted the question of whether or not the defendant was guilty of wilful and wanton misconduct, cited and quoted from Lessen v. Allison, 25 Ill App2d 395, 401, 402, 166 NE2d 806, as follows:

“ ‘The more recent cases of the Supreme Court of this state indicate that it is the exceptional case wherein it can be said that the question of wilful and wanton misconduct on the part of the driver or contributory wilful and wanton misconduct on the part of the guest is not a question of fact for the jury.’ ”

The case of Pedrick v. Peoria & Eastern Ry. Co., 37 Ill2d 494, 229 NE2d 504, is not applicable.

In the instant case, the failure of the defendant to discover the danger when it could have been discovered by the exercise of ordinary care, was a question which should have been left to the jury to determine whether or not this conduct constituted a wilful and wanton act. Koch v. Lemmerman, 12 Ill App2d 237,139 NE2d 806.

It is not the function of a reviewing court to interpret the statute to defeat the intention of the legislature. The judgment of the Circuit Court of Cook County should be reversed and the case remanded for a new trial.

       The majority opinion, reciting testimony of the defendant, says: “Defendant was not confused after learning the way at the gas station, although she had been confused prior to that time.” Grosskurth, the Illinois State Trooper, testified that when he arrived at the scene of the accident, within 10 minutes, the defendant told him she was confused and didn’t know what happened.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Esther Casillas, a Minor, by Maria Casillas, her Mother and Next Friend, Petitioner-Appellant, v. Orville Rosengren, Defendant-Appellee.
    Gen. No. 66-136.
    Second District.
    August 9, 1967.

      Herbert F. Stride, of Chicago, for appellant.
    Matthews, Jordan, Dean and Suhler, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from an order entered by the trial court on March 18, 1966, that dismissed plaintiff’s complaint and is concerned primarily with the problems of practice.

On March 9, 1962, the plaintiff, Esther Casillas, then a minor of the age of six years, was struck by an automobile operated by the defendant, Orville Rosengren, in the City of Chicago, and injured. Suit was filed shortly thereafter on her behalf by her mother and next friend to seek recovery for her damages in the Circuit Court of Kane County and docketed as case No. 62-1188. The defendant, Rosengren, through his attorney, duly filed his appearance and answer in that cause. On March 13, 1964, the trial court on its own motion, entered an order that dismissed the case for want of prosecution with leave to reinstate within 90 days. This order was pursuant to Administrative Rule 4 of the Circuit Court of Kane County that provided as follows:

“On the first day of the first term in each year of this Court, there shall be a general call of the Docket, both law and Chancery on which call all cases remaining thereon, in which positive action has not been taken and no attempt made for trial or final disposition of the same during one year next preceding such call, may be dismissed at the cause of the Plaintiffs, with leave to reinstate on sufficient cause shown, within ninety (90) days.”

It is not clear whether the plaintiff had received written notice that the case would be called on March 13 or only notice by publication as provided by local rule. However, it is undisputed that no positive action had been taken in the proceedings for over one year prior to the dismissal or that the trial court had the power to enter the order.

On February 1, 1966, the plaintiff filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72) to vacate the order of March 13, 1964, which had dismissed the complaint. The affidavit and testimony offered in support of the petition alleged that it was not clear in 1964 if the peculiar injuries suffered by the plaintiff would develop into cancer and that the suit could not be prosecuted further until her condition would permit a reasonably accurate medical prognosis. Counsel for the plaintiff contended that for that reason they had acquiesced in the dismissal at the time it was entered by the court but that they now intended to proceed since they were able to determine that cancer would not, in all probability, occur. The defendant opposed the petition and argued that the plaintiff was not entitled to the relief of section 72, and, at the conclusion of the hearing, the court denied the petition.

On March 1,1966, the plaintiff filed a new suit in Kane County, docketed as Case 66-588, based on the same cause of action as the original case. The defendant countered with a motion to dismiss that recited the dismissal of the earlier cause in March of 1964 and the recent denial of • the plaintiff’s petition to vacate that dismissal. On March 18, 1966, the court entered its order that incorporated the records of Case 62-1188 as part of the new cause; found that the order of February 1, 1966, in the earlier case was “determinative”; and dismissed the complaint.

The plaintiff then filed her third suit, again based on the same cause of action, in the Circuit Court of Cook County but that case was dismissed on October 17, 1966, on the basis that the order of March 18, 1966, of the Circuit Court of Kane County was binding on all other courts of like jurisdiction. Thereafter, plaintiff petitioned this court for, and we granted, leave to appeal from the order of March 18, 1966, under section 76(1) of the Civil Practice Act and Appellate Court Rule 21 (Ill Rev Stats, cllO, §201.21).

The defendant’s motion to dismiss the second complaint and the comments of the trial court indicate that the dismissal was predicated on a concern for the effectiveness of Administrative Rule 4 of the Circuit Court of Kane County. The motion stated that it would be improper to “circumvent” the rule by the filing of a subsequent suit based on the same cause of action and the trial judge said “. . . either these rules mean something to aid the Courts in the disposition of our cases or they don’t mean anything . . .” and dismissed the complaint.

Clearly the trial court had the authority to dismiss the first complaint for want of prosecution. Most, if not all, trial courts have adopted administrative rules that provide for the dismissal of cases on the motion of the court after a certain period of time if no action has been taken in the case. It is obviously in the interest of justice and an orderly procedure of judicial administration that this be done to relieve court calendars from the weight of dormant litigation. A dismissal for want of prosecution, entered pursuant to such local rules, is a final, appealable order. Athletic Ass’n of University of Illinois v. Crawford, 43 Ill App2d 52, 55, 192 NE2d 556; Pettigrove v. Parro Const. Corp., 44 Ill App2d 421, 424, 194 NE2d 521.

However, a dismissal for want of prosecution is only an involuntary nonsuit and is not an adjudication of the merits of the case or in itself, a bar to a further suit on the same issues. Branom v. Miller, 25 Ill App2d 94, 96, 166 NE2d 123. If the further suit would be otherwise barred by the statute of limitations, section 24 of that Act (Ill Rev Stats, c 83, § 24a) provides that a new action could be commenced within one year from the date of the nonsuit even if the time limited for bringing such action shall have expired during the pendency of the original suit. Patrick v. Burgess Norton Mfg. Co., 56 Ill App 2d 145, 205 NE2d 643.

In this case, it is not necessary for the plaintiff to rely on section 24 to commence the new action since, because of her minority, the time in which her suit might be brought has not expired. Ill Rev Stats, c 83, § 22.

The defendant raises the further point that the hearing held on plaintiff’s petition under section 72 to vacate the prior order of dismissal in the first case was an adjudication of the merits of that case and, therefore, a bar to subsequent litigation under the doctrine of res ad judicata. In support of his contention that a hearing on a section 72 petition is an adjudication of the merits of the case, the defendant cites the cases of Athletic Ass’n of University of Illinois v. Crawford, supra, and Jones v. Reuss, 47 Ill App2d 212, 197 NE2d 709. In the Athletic Association case, the complaint and countercomplaint were dismissed by motion of court, pursuant to administrative rule, for want of prosecution. The case was reinstated on the defendant’s motion 26 months after the order of dismissal by the trial court. On appeal, the order of reinstatement was reversed on the grounds that the dismissal order was a final, appealable order and that therefore the trial court lost jurisdiction to entertain a motion 30 days after its entry. Further, the motion to reinstate did not qualify as a petition under section 72 since it was not filed within the two years as required by that section. Although it would appear in the Athletic Association case that the defendant’s cause of action was barred by the statute of limitations, the case clearly did not stand for the proposition that there had been an adjudication of the merits of the cause.

In Jones v. Reuss, supra, the complaint, filed in 1960, was dismissed in 1962, on motion of the court, when the plaintiff failed to comply with an order of court to furnish certain information as to his income. The judgment order contained a finding that the defendant was “not guilty.” One year later, the plaintiff filed a motion to vacate the judgment and, after a hearing, the motion was denied. Two months after the hearing, the plaintiff filed a further petition, expressly under section 72, to modify the judgment. The trial court sustained the defendant’s motion to strike the petition on the grounds that the earlier motion was in reality a section 72 petition and its denial was an adjudication of the issues. The court of review affirmed the lower court on that basis. The Jones case does not support the position that a hearing on a section 72 petition is necessarily an adjudication of the issues in the lawsuit but only that it is an adjudication of those issues raised in the petition itself. The Jones decision would be applicable to our instant case only if the plaintiff had attempted a second time to vacate or modify the order of dismissal in the first suit. It has no application as a bar to a subsequent suit where, as here, there has been no adjudication of the merits of the cause of action.

We conclude that neither the dismissal for want of prosecution pursuant to administrative rule nor the hearing on the petition to vacate that dismissal were an adjudication of the merits of the plaintiff’s cause of action. Since that cause is not otherwise barred, it was error to dismiss the second complaint and we therefore reverse the order of March 18, 1966, and remand with directions that the complaint be reinstated and the cause proceed.

Reversed and remanded.

DAVIS, P. J. and MORAN, J., concur.


text:
    Betty Wachowski, Plaintiff-Appellant, v. Paul Wachowski, Defendant-Appellee.
    Gen. No. 66-148.
    Second District.
    August 9, 1967.

      Leren and Burek, of Wheaton, for appellant.
    Charles J. Anderson, of Wheaton, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of DuPage County wherein the court entered a decree granting the husband-defendant and countercomplainant a divorce and awarding to him custody of the parties’ four minor children.

The plaintiff, Betty Wachowski, filed her complaint for divorce against defendant, Paul Wachowski, on April 28, 1966, alleging extreme physical cruelty. Defendant’s answer denied the acts of cruelty. In his countercomplaint, defendant alleged excessive consumption of intoxicating beverages on the part of plaintiff and alleged that she had left her bed and board on several occasions during the past two years, was frequently seen with men other than her husband and would remain away from home at night until the wee hours of the morning.

After the decree was entered in the trial court the defendant filed a motion to amend the countercomplaint to conform to the proof and he alleged that on numerous occasions plaintiff indulged in illicit sexual relations and was guilty of adultery. Since notice of appeal had already been filed, the trial court declined to act on said motion. On application this court granted defendant’s motion to amend his countercomplaint.

The parties were married on January 5, 1952, in Glen Ellyn, Illinois. Four children were born of the marriage, ranging in age, at the time of the trial, from four to eleven years. At the time the complaint was filed the family resided in their home in Lisle, Illinois. The testimony presented at the trial on behalf of both parties indicates that both considered their matrimonial vows as something less than sacred. It appears that from the outset of the marriage the bonds of matrimony were too binding on the plaintiff. It would serve no useful purpose to detail the testimony adduced by the parties. Suffice it to say the marriage should be dissolved.

The substantial issues are whether the trial court erred, first, in finding the plaintiff guilty of adultery, and second, in awarding custody of the minor children to the husband. The record indicates that the plaintiff had a proclivity for frequenting taverns and consuming their spirituous ■ products and, that in the course of such activity had a tendency to seek out the companionship of men other than her husband. From the decree entered in the court below, it is apparent that the trial judge was convinced that she had engaged in adulterous conduct and that, coupled with her drinking, was sufficient reason to render her unfit to have custody of the four minor children. It also appears from the record that on numerous occasions the plaintiff without just cause absented herself from the marital home and left the obligation of caring for the children to her husband. It is apparent that the trial judge was convinced that the plaintiff had engaged in a course of adulterous conduct and that there was no likelihood that she would cease to frequent taverns and, from time to time, remain away from home overnight.

Plaintiff is quite correct in her assertion that before a court will enter a decree based on adultery, the evidence and proof must convince the mind affirmatively that actual adultery was committed, since nothing but the carnal act can lay the foundation for a divorce on those grounds. Fowler v. Fowler, 315 Ill App 270, 42 NE2d 954. However, we are not unmindful that adultery is an act committed in secrecy and invariably the parties use every means in their power to conceal their act and to prevent discovery. In most all such cases the evidence is circumstantial and the fact of adultery must be inferred from the circumstances that naturally lead to it. The direct fact of adultery can seldom, or ever, be proved. Zimmerman v. Zimmerman, 242 Ill 552, 559, 90 NE 192; Bast v. Bast, 82 Ill 584. The testimony in the record before us leads us to the inescapable conclusion that this plaintiff is guilty of adultery.

Plaintiff is equally correct in her assertion that there must be compelling evidence to prove that the mother is an unfit person before the court will deny her custody of her children of tender years. Nye v. Nye, 411 Ill 408, 414, 105 NE2d 300. While we realize that it is usual to place small children in the care of their mother, as we have pointed out in Wolfram v. Wolfram, 5 Ill App2d 471, 475,126 NE2d 34:

“This is not an inflexible rule, however, since the welfare of the child is the prime consideration.”

In the case at bar, the trial court specifically found:

“If however we consider the many times this mother left the children, on many occasions overnight and at times for extensive periods, and if we consider the fact that the evidence indicates that she resorts to intoxicants when real or imagined problems arise, and sometimes for no reason at all; and if we consider the fact that the evidence indicates that she has a distaste and dislike for the confusing duties of a wife and mother to the point of running away from these duties on many occasions, the Court feels that the best interests of the children would be served by granting custody of them to the father.”

In addition, the record contains ample evidence of the ability of the father to adequately care for the children.

The plaintiff has questioned the propriety of the trial court’s failure to order the children returned to the mother pending this appeal. Since we are of the opinion that the decree of the court below should be affirmed, we will not decide the question of the effect and operation of the supersedeas bond.

Finally, defendant and counterplaintiff has requested that this court in its decision exercise its powers under section 92(e) of the Civil Practice Act (Ill Rev Stats, c 110, par 92(e)) and under Supreme Court Rule 366(a)(5) and award title to the real estate located at 5607 Essex Street, Lisle, Illinois, to him. It appears from the record that the parties are joint tenants in two parcels of real estate and it further appears that there was considerable discussion with the trial court concerning the disposition of the interest in said property. However, some of those discussions were held off the record and absent the benefit thereof we refuse to exercise such powers and suggest that if the parties cannot reasonably adjust their property rights, then further application should be made to the trial court in this respect. In addition, the defendant and counterplaintiff failed to cross appeal this portion of the decree. Consequently, we will not consider this question.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: MR. JUSTICE MORAN

text:
    Rose C. Schmidt, Plaintiff-Appellee, v. Cenacle Convent, Defendant-Appellant.
    Gen. No. 66-152.
    Second District.
    August 9, 1967.
    Rehearing denied September 15,1967.

      John W. Gilligan, of Glen Ellyn, for appellant.
    James D. Murphy, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The jury awarded Rose Schmidt damages in the sum of $6,600 against the Cenacle Convent for injuries she sustained in a fall at the convent. The defendant appeals from a judgment entered on the verdict, alleging that the trial court erred in refusing to grant its motion for a directed verdict and judgment notwithstanding the verdict.

On May 1, 1963, a Wednesday, the convent was holding a “day of recollection.” Such days were normally held in the middle of the week, and lunch was served in the dining room. The dining room also was used on the weekends for retreats. One of the Sisters called the plaintiff to ask her to help with the serving of the noon meal, which was customary. The plaintiff volunteered her services and was not paid; however, some of those who helped were paid.

The plaintiff was very familiar with the premises since she had been going to the convent regularly since it opened in 1939 and had worked as a server at meals on many prior occasions. On the day in question, she arrived at the convent at about 10:00 a. m. She went to the dining room at about 10:30 a. m. and proceeded to prepare the bread and butter plates and relish trays. At noon she went to the dining room where she, and the others who were helping with the main meal, were served lunch by one of the Sisters. After the meal the dishes were cleared, and the plaintiff proceeded to fill the water glasses at the tables for the group that was to be there for lunch. She carried a pitcher of water from table to table, filling the glasses, and it was while she was filling the glasses that she slipped and fell.

She stated that all at once she felt herself going; she fell to the floor with water from the pitcher falling over her; that as she fell it felt as it would if you slipped on ice; and that she didn’t know whether or not any foreign substance was on her heel.

As to the condition of the floor, the plaintiff’s testimony was much the same as the testimony of those from the convent. It was a hardwood floor and was well-polished or waxed in that it had a glossy appearance. The day in question was a Wednesday and it was customary to polish the floor on Monday or Tuesday after a weekend retreat. In the words of the plaintiff, the floor on the day in question, “didn’t look very much different than the floor at any other time when I had been over there because the floor was always kept in perfect condition.” Asked why she fell, the plaintiff answered, “Well, it was a smooth floor, it was a wood floor varnished and highly waxed,” but she testified that she did not know what caused her to fall. Elsewhere she again testified that the floor on the day in question did not look any different than it did on other days when she had been there. It was clean and there did not seem to be anything on the floor when she was walking, nor did she regard the floor as slippery.

At the time in question, the plaintiff was 69 years old, active, was in good health and she was wearing orthopedic shoes with a rubber heel. As a result of the fall she broke her hip.

The defendant contends that the trial court should have directed a verdict or entered judgment non obstante veredicto. The Supreme Court has recently set forth the test by which we must determine such a contention. After noting that some uncertainty previously existed in this State as to the rule applicable to testing whether a verdict should have been directed or a judgment n. o. v. entered, and after an exhaustive review of the case law, the Supreme Court concluded that a judgment ought to be directed and a judgment n. o. v. entered “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & E. R Co., 37 Ill2d 494, 229 NE2d 504 (1967).

The complaint charges that the defendant was negligent in causing or permitting (1) the dining room floor to be wet with water, (2) the dining room floor to be covered with a slippery fluid, (3) the dining room floor to be highly polished and slippery and unsafe for walking thereon, and (4) the pantry to have greasy or slippery food particles or foreign substances remaining on the pantry floor and the same became affixed to the plaintiff’s shoe. Allegations (1), (2) and (4) above appear to charge that defendant permitted foreign substances to be on the floor. Many foreign substance cases state that the owner of a building owes a business invitee the duty of exercising ordinary care in maintaining the premises in a reasonably safe condition. Donoho v. O’Connell’s, Inc., 13 Ill 2d 113, 118, 148 NE2d 434 (1958); Garrett v. National Tea Co., 12 Ill2d 567, 573, 147 NE2d 367 (1958); Johnson v. Central Tile & Terrazzo Co., 59 Ill App2d 262, 274, 207 NE2d 160 (1965). As was stated in the Donoho case, supra, at page 118:

“. . . Liability will be imposed where a business invitee is injured by slipping on a foreign substance on the premises if it was placed there by the negligence of the proprietor or his servants, or, if there is no showing how the substance got on the premises, if it appears that the proprietor or his servant knew of its presence, or that the substance was there a sufficient length of time so that in the exercise of ordinary care its presence should have been discovered.”

The defendant does not challenge the status of plaintiff as an invitee for purpose of this appeal. Hence, it owed to the plaintiff the duty of exercising ordinary care to maintain the premises in a reasonably safe condition.

Plaintiff’s difficulty is that there is absolutely no evidence of any foreign substance being on the floor. There is evidence that one of the Sisters cleared the table after those who were about to serve the luncheon had eaten. There was no evidence, however, that she had dropped or spilled anything on the floor. The fact that the Sister had walked over the floor carrying dirty dishes and that the plaintiff later fell on this floor does not justify the presumption, either by us or by the jury, that the Sister had dropped something on the floor. If there is any reasonable inference that might be drawn from the evidentiary facts, it is that the plaintiff, herself, may have spilled some water as she was filling the glasses on the table. This, of course, would be of no help to plaintiff’s cause. It would indicate only her guilt of contributory negligence and that her injury was not the result of a breach of any duty owed by the defendant. Mick v. Kroger Co., 37 Ill2d 148, 150, 151, 224 NE2d 859 (1967).

As to the allegation regarding the highly polished and slippery condition of the floor, the case of Dixon v. Hart, 344 Ill App 432, 436, 437, 101 NE2d 282 (1951) and the many cases thereafter make clear that merely waxing or polishing a floor is not negligence in and of itself. Some positive act of negligence must be shown such as using an excessive quantity of wax, or applying it unevenly, or freshly polishing a floor without warning to others, or treating a part of a floor and leaving part untreated, or polishing a floor where people would step on it unexpectedly. Dixon v. Hart, supra, at 435. The waxing of floors is too common and accepted a practice to give rise to liability. It must be shown that the owner of the premises was negligent either in the materials he used or in the manner in which he applied the materials. Rarus v. J. C. Penney Co., 39 Ill App2d 42, 46, 187 NE2d 529 (1963).

Both the Dixon and Rarus cases further illustrate that testimony that a floor was “slippery,” “slick,” “polished” or “shiny” is not sufficient alone to require that the owner’s liability be weighed by a jury. Dixon, supra at 437; Rarus, supra at 48. The best that can be said of the evidence, viewed most favorably for the plaintiff, is that the floor was well-polished. The floor was always well-polished and kept in a good condition. Plaintiff acknowledged that she knew this, that she was very familiar with the premises and that the floor appeared much the same as on other days she had been there. We fail to see how this can be the basis of liability. See Mack v. Woman’s Club of Aurora, 303 Ill App 217, 220, 24 NE2d 898 (1940).

It would serve no purpose to further elaborate on the evidence. Applying the standard set forth by the Supreme Court in the Pedrick case, supra, we believe that the evidence is such that any verdict other than for the defendant could not possibly stand.

The plaintiff has raised the additional argument that defendant’s appeal was not timely. The jury returned its verdict late Thursday, June 30, 1966. On July 1,1966, plaintiff’s counsel mailed to the judge a judgment order, requesting that it be entered. The July Fourth weekend intervened and the judge entered the judgment order on July 6, 1966. The defendant, it appears, ascertained this date from the clerk and filed its post-trial motion within thirty days thereafter. Judgment also had been entered on the verdict previously, without a written order, on June 30, 1966. Defendant’s post-trial motion was not within thirty days of the June 30 date.

We are confident that the “second” judgment was not prepared and entered under a calculation to mislead the defendant. However, it had that effect. The Committee Comments to present Supreme Court Rule 272 indicate that prior to its adoption the question of the date when a judgment was entered was not always without doubt. The written judgment order was “entered” in this case at the request of the plaintiff. The letter forwarding the judgment draft to the judge, a copy of which went to defendant’s counsel, requested the entry of the judgment. The entry thereafter on July 6, led both defendant’s counsel and the clerk to accept that as the effective date.

Under these facts we believe we would be totally unwarranted in holding that the defendant may not prosecute this appeal. Without impugning the motives of anyone, we hold that the plaintiff must be estopped to assert any date other than July 6, 1966, as the effective date of the judgment.

For the reasons set forth herein, the judgment of the trial court is reversed and judgment entered herein for the defendant.

Reversed — judgment for defendant.

ABRAHAMSON and DAVIS, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Alice K. Urban, Plaintiff-Appellee, v. Marcella Brady, Individually and as Administrator of the Estate of and as an Heir at Law of Daniel J. Brady, Deceased; Mary Jane Le Maire and Margaret Ann Brady, a Minor, as Heirs at Law of Daniel J. Brady, Deceased, Defendants-Appellants.
    Gen. No. 51,076.
    First District, Third Division.
    August 10, 1967.
    Appellee’s petition for rehearing denied September 21.1967.
    Appellants’ petition for rehearing denied September 21.1967.

      McCarthy & Toomey, of Chicago (John E. Toomey, Timothy C. Toomey, and Eugene M. Wiase, of counsel), for appellants.
    Carr & O’Rourke, of Chicago (Donald A. Carr and Robert J. O’Rourke, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In this suit the plaintiff seeks to establish that a partnership existed between herself and her brother, the deceased Daniel J. Brady, in a service station located at 832 West Madison Street, Oak Park, Illinois. Defendants, heirs at law of Daniel J. Brady, deny the existence of such partnership. The matter was referred to a master in chancery who heard the evidence and reported that a partnership did exist as charged by plaintiff and recommended that an accounting be taken. The court approved and confirmed an initial and a supplementary report made by the master and re-referred the cause to the master for an accounting. Defendants have appealed from that decree.

The business in question was originally financed by Mary Brady, the mother of Alice Urban and Daniel Brady. Mrs. Brady testified that in 1926 she gave her children from $12,000 to $14,000 to buy property which would give them an income for their later years. A partnership was formed that year between the plaintiff, her husband Otto Urban and Daniel Brady. With the funds provided by Mary Brady, the three of them bought the property in question and constructed a service station. From 1926 to 1939 Otto Urban and Daniel Brady operated the business, working equal hours and sharing the profits equally. About the year 1939 it was discovered that Otto had misappropriated partnership receipts. He withdrew from the business and assigned his interest to Alice and Daniel in equal shares. Thenceforth Alice and Daniel held undivided half interests in the realty, the mortgage having been paid out of business earnings. The property was conveyed to Alice and Daniel as tenants in common on May 21,1940.

After Otto Urban left the business Daniel operated the station by himself, but continued to file partnership tax returns which show that from 1940 to 1955 Alice received small annual payments from the business (usually in the sum of $120) while Daniel withdrew several thousand dollars annually. In addition to the income tax returns Daniel filed monthly sales tax returns, signing each one and giving his title as “partner.” The following question appears on each return, “Has there been any change of ownership?” and on each return the answer was “No.” Personal property tax bills for the years from 1944 to 1955 were rendered to “West Madison Street Service Station, A. J. Urban and D. S. Brady.” Utility bills were likewise addressed to Urban and Brady, and insurance policies covering the business designated the plaintiff and Daniel Brady as the assured. A clerk of the County Court of Cook County testified that a certificate was issued pursuant to the Assumed Business Name Statute (Ill Rev Stats, c 96, § 4 (1965)), stating that the West Madison Service Station (the name under which the business was operated) was owned by D. J. Brady and Alice Urban.

In addition to the documentary evidence of the partnership, several witnesses testified that in the course of conversation Daniel several times described the business arrangement as a partnership between Alice and himself. The testimony reveals that the plaintiff and her brother Daniel quarreled frequently about the distribution of profits of the enterprise. Mary Brady testified that Alice asked Daniel on several occasions for a larger distribution and that he replied that the business was not making any money. After a series of such quarrels however Daniel agreed to distribute to Alice *4 cent per gallon of gasoline sold, rather than the fixed payment previously distributed.

It is defendants’ contention that the payments to Alice were rent for her half of the realty. This argument by the defendants is not based on anything oral or written that changed the initial character of the relationship. They argue that the withdrawals from the business were so disproportionate that the arrangement between the parties must have been a lease rather than a partnership. This does not follow. Alice protested the small amounts paid to her. The service station was a family enterprise from the outset and it is not uncommon for members of a family to be informal and lax in their business dealings with each other.

The requisites of a partnership are that the parties have joined together to carry on a trade or venture for their common benefit, each contributing property or services and having a community of interest in the profits. This partnership came into existence at the behest of and with funds provided by the mother. This is established by the mother’s testimony. Written articles of partnership are not essential to the formation of a partnership. Such factors as the mode in which the parties have dealt with each other, the mode in which each has with the knowledge of the others dealt with other people, and the use of a firm name have been deemed material in determining the existence of a partnership. Van Buskirk v. Van Buskirk, 148 Ill 9, 35 NE 383; Einsweiler v. Einsweiler, 390 Ill 286, 61 NE2d 377; Olson v. Olson, 66 Ill App2d 227, 213 NE2d 95. The evidence amply supports the chancellor’s finding that the plaintiff and Daniel Brady were partners.

Defendants further contend that plaintiff’s claim is barred by laches because she failed to bring suit until after Daniel Brady had died. Laches depends on the facts of each case. No simple yardstick can be devised by which a plaintiff’s diligence can be measured. The fact that a family relationship existed, with the consequent hesitancy to litigate, is certainly a proper matter to be considered.

As a general rule an action for a partnership accounting cannot be brought until the partnership has been dissolved. Einsweiler v. Einsweiler, 390 Ill 286, 61 NE2d 377. The evidence supports the plaintiff’s contention that the partnership between herself and her brother was not terminated until Daniel’s death. Thereafter the plaintiff was prompt in protecting her rights and was not guilty of laches.

The final point raised is the plaintiff’s cross-appeal for reasonable expenses and attorney’s fees under section 41 of the Civil Practice Act (Ill Rev Stats, c 110, §41 (1965)). That section provides for such an allowance where allegations or denials are made without reasonable cause and are found to be untrue. No specific finding of this sort was made by the chancellor and he acted properly in denying the plaintiff’s motion. Master’s fees were properly assessed against the defendants and to that extent the burden of this litigation was thereby allocated to them.

There was ample evidence to support the chancellor’s finding that a partnership existed between the parties and the decree is affirmed.

Decree affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Elsworth Brown, Defendant-Appellant.
    Gen. No. 50,845.
    First District, Third Division.
    August 10, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Elsworth Brown was convicted by a jury of the crimes of rape and robbery. He was sentenced to the penitentiary for a term of from 50 to 100 years for the rape and to a term from 5 to 10 years for the robbery, the sentences to run concurrently.

The defendant contends that his convictions should be reversed because the evidence did not prove beyond a reasonable doubt that a rape had in fact occurred and that the method of identification employed by the police left a reasonable doubt that he was the assailant. He also contends that his convictions should be reversed and the case remanded for a new trial because: the prosecution appealed to the racial prejudice of the jury both in its opening statement and in the introduction of evidence; the prosecution was allowed to introduce opinion evidence which invaded the province of the jury; remarks of the trial judge while defense counsel was attempting to impeach the prosecutrix, denied him a fair trial, and the closing argument for the prosecution was prejudicial. In the alternative he contends that the sentences imposed upon him are excessive.

About 6:45 p. m. on January 6, 1965, the prosecutrix, who was 44 years of age, arrived at Mount Sinai Hospital, Chicago, to visit her mother. She parked her car across the street from the hospital in Douglas Park and left the auto unlocked. After visiting with her mother she returned to her car, entered by the driver’s door and put the key in the ignition.

She testified that at this moment a man, who had concealed himself in the back seat of the car, reached up, grabbed her around the neck with one hand and placed a four-inch dagger against her throat with his other hand. She thought, at first, it might be a robbery so she threw her purse containing $28 into the back seat and said for him to take the money. She pleaded with the man to leave her alone telling him that she was a grandmother and was in her menstrual period, and that her mother was to have her leg amputated. A squad car passed through the park and the man pushed her head down, warning her that if she screamed she would be killed.

After the police car had passed on the man slid his hand down her coat and touched her breasts. She attempted to free herself but he hit her on the side of the head. Blood flowed from the wound. She cried and he told her he would kill her if she did not do as he said. He asked if she ever had sexual relations with a Negro. With his knife at her throat he ordered her to drive out of the park and into an alley. She passed the alley, stopped the car and opened the left-hand door in an attempt to flee, but the man jumped into the front seat, beat her severely and again threatened to kill her.

She was compelled to drive the car into another alley and to turn its lights off. He took the keys from the ignition, told her to make love to him like she did to her husband, ripped her blouse, removed her shoes, slacks and her sanitary brief pants. She said she was hemorrhaging and sick and begged him to leave her alone. She kept her legs together but he forced them apart and raped her. He took back the tissue he had previously given her to wipe the blood from her face, used it to remove his fingerprints from various parts of the car, gave her the ignition keys and left.

After he had departed the prosecutrix urinated over the front seat; it was an attempt, she said, “to force out possibly what was left in me.” She drove from the alley and was hurrying to get out of the colored neighborhood when she saw a cab with a white driver. As she hailed the driver, a police car pulled up alongside of them. She called out, “Help me. Help me. I’ve been raped.”

The policemen took her back to Mount Sinai Hospital where the wound in her head was stitched and general medical care administered to her. While at the hospital, police officers brought in a suspect for her to observe but she said this was not the man who attacked her.

The following day the prosecutrix viewed approximately 400 pictures and two days later she was shown about 500 more pictures in albums and projected on slides, but she did not see the picture of her assailant. She viewed lineups with the same result. Six days later, on January 15th, she was shown two pictures of a man who was in police custody. She asked to see the man in person. Upon viewing a lineup composed of six Negro males she positively identified the defendant.

The defendant’s principal witnesses were two doctors in residency at Mount Sinai Hospital. One testified that he had examined the prosecutrix the night she was brought into the emergency room; that she had a laceration near her eyebrow but that he saw no other laceration or bruise either on her face or in or outside her vagina. He said he took a smear from her vagina and that she was not menstruating. The second doctor testified that on the same night he examined the smear and was unable to find spermatozoa. On cross-examination he testified that the slide was “fixed and stained” and reexamined the next day. It was stipulated that the second examination showed the existence of a few degenerated spermatozoa.

Two of the witnesses called in rebuttal by the prosecution were a gynecologist and the nurse on duty in the emergency room when the prosecutrix was brought in. The gynecologist, whose entire testimony was objected to by the defendant, was asked a hypothetical question as to whether an injury would be found to the vaginal area of a 44-year-old woman who had been married 24 years and had delivered three children, if she engaged in sexual intercourse and was examined about a half hour later. The witness replied that the woman should not, under ordinary circumstances, have any injuries and that it would make no difference if she was in her menstrual period. On cross-examination he added that there can be an injury during sexual relations whether they are forcible or not, but that there are not usually injuries to a vagina that has delivered three children, whether the relations are forcible or are not. The nurse testified that she noticed a small amount of blood around the prosecutrix’ vaginal area when she undressed and again when the area was cleaned. She said the prosecutrix asked for a sanitary pad and she gave her one.

In support of his contention that there is a reasonable doubt whether a rape occurred, the defendant argues that it is improbable that the incidents related by the prosecutrix could have taken place in the early evening in a crowded, colored neighborhood. He also argues that there is little or no substantiation of her story that her clothes were torn, that she was beaten or cut or that she was in her menstrual period. He amplifies these arguments by pointing out that at the trial the State did not produce the clothing, the front seat of the car (to prove the presence of sperm, blood or urine), or the taxi driver who was supposed to have been the first white person she saw after the rape.

When a conviction in a rape case is dependent upon the testimony of the prosecutrix and the charge is denied, the testimony of the prosecutrix must be corroborated by evidence of other facts and circumstances (People v. Reaves, 24 Ill2d 380, 183 NE2d 169 (1962)) unless her testimony is clear and convincing, in which case corroborative evidence is not required. People v. Mack, 25 Ill2d 416, 185 NE2d 154 (1962); People v. White, 26 Ill2d 199, 186 NE2d 351 (1962).

In the instant case the testimony of the prosecutrix is clear and convincing and corroborated as well. Her detailed account of the events was unshaken. There is no reason to doubt their accuracy. Her testimony was corroborated by the immediate complaint to the police, the bloody condition of her face, her wound which required two stitches to close, the sperm on the stained glass slide, the testimony of an officer that her clothing was torn and the testimony of the nurse that she was in her menstrual period. The cabdriver was not a material witness. The State was under no duty to call him as a witness or to explain his absence.

The defendant next argues that the prosecutrix’ identification was vague, uncertain and contradictory. This argument is predicated on the fact that the police, prior to the lineup, showed her two pictures of him and told her they were of a man who had been arrested. It is argued that this amounted to suggestive identification. There is no requirement that a lineup be used in all identification proceedings. The failure to use the lineup procedure does not affect the admissibility of the evidence, but only the weight to be attached to it by the trier of fact. People v. Gardner, 35 Ill2d 564, 221 NE 2d 232 (1966); People v. Boney, 28 Ill2d 505, 192 NE2d 920 (1963). The same rule is applicable when a claim is made that an identification was brought about by the police telling the victim that a person suspected of the crime is in custody. People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599 (1959); People v. McIntosh, 82 Ill App2d 90, 227 NE2d 76. The sufficiency of identification'is a question for the jury and a court of review will not reverse on this ground unless the testimony is so unsatisfactory as to create a reasonable doubt as to the guilt of the accused. People v. Brengettsy, 25 Ill2d 228, 184 NE2d 849 (1962).

In the present case the prosecutrix had both time and opportunity to study the face of her attacker and she testified that she did so. She was most careful in making the identification. A suspect was brought into the hospital for her to view and she unhestitatingly said he was not the assailant. During the next few days she viewed approximately 900 pictures and attended some lineups, a process consuming no small amount of time, and she was still unable to identify her attacker. When she was shown the defendant’s pictures she did not jump to the conclusion that he was the man but, instead, exhibited great caution. The prosecutrix lived and worked in a Chicago suburb. To save her another trip to police headquarters in Chicago, a detective working on the case took the two pictures to her. These were not police department pictures. One was obtained from the defendant’s grandfather, the other was on the defendant’s person when he was arrested. The former was about three years old, the latter was taken at an untestified time. The record does not disclose whether the first one was a snapshot or a photograph, a picture of the defendant alone or in a group. The second one was on an institutional identification card. In any event, the pictures were such that the prosecutrix wanted to see him in person. When she saw that person she was positive he was the man. Where the only question is one of identification, the testimony of one credible witness, if positive, is sufficient to convict. People v. McCall, 29 Ill2d 292, 194 NE2d 222 (1963). The extreme care exercised by the prosecutrix does not sustain the argument that her identification of the defendant was influenced by the police, and it leaves no abiding doubt that the identification was correct.

The defendant contends that the use of the words “colored neighborhood” by the prosecutrix in describing the area where the crime took place, and her testimony that he asked her if she had ever been “f-----by a nigger” were an appeal to the racial prejudice of the jury and denied him a fair trial. The assistant State’s attorney used the exact words in his opening statement and there was no objection by the defendant’s counsel. There were objections to the prosecutrix’ testimony, but the objections were overruled. If the testimony was proper, the remarks of the prosecutor in his opening statement were likewise proper. People v. Pieper, 410 Ill 15, 101 NE2d 109 (1951).

There are two reasons why this contention must fail. First, there is no indication in the record that the jury was composed entirely of persons who were not members of the Negro race. For the contention to even merit consideration it would have to be shown that there was a non-Negro jury. Secondly, while evidence offered solely for the purpose of appealing to a jury’s prejudice against an accused must be excluded (People v. Bernette, 30 Ill2d 359, 197 NE2d 436 (1964)) evidence which is relevant and otherwise admissible need not be excluded because it may also have a tendency to prejudice a defendant. People v. Jackson, 22 Ill2d 382, 176 NE2d 803 (1961); People v. Evans, 25 Ill2d 194, 184 NE2d 836 (1962) .

The defendant’s question relating to sexual intercourse with Negroes showed his intent. The words used were those of the rapist and the prosecutrix’ quotation was correctly received in evidence. In People v. Mulvaney, 286 Ill 114, 121 NE 229 (1918) the court said: “Whenever it becomes important to show . . . the occurrence of any fact or event, it is competent and proper also to show any accompanying act, declaration or explanation which relates to or is explanatory of such fact or event.” The reference of the prosecutrix to a “colored neighborhood” was not prejudicial. Her answer was in response to a question concerning the locality where the rape occurred. It was a natural, if unexpected, response and the objection to it was properly overruled.

Of the defendant’s last three contentions only two merit discussion. The other, concerning a remark made by the trial court in ruling on an objection, is devoid of merit. It is argued that it was error to permit the gynecologist to answer the State’s hypothetical question. One of the purposes of the defense evidence was to imply that the prosecutrix had not been raped because there were no injuries to her perineum or vagina, and because she had not been infected with gonorrhea, a contagious disease with which the defendant was acutely afflicted. It was proper to permit the State to rebut such implications by expert testimony, and the expert’s answer to the hypothetical question did not invade the jury’s prerogative of determining the ultimate issue of whether or not there had been forcible intercourse. As to the last point, it is argued that prejudicial comments were made by the prosecutor in his final argument when he said: “I don’t think that you can possibly say that this never occurred. I don’t think there is one bit of evidence in this record that this defendant didn’t do it.” An objection was interposed and was sustained. The defendant who did not testify at the trial, claims that the comments were an allusion to this fact.

The failure of an accused to testify at a trial creates no presumption against him and comment on or reference to such failure is not permitted. Ill Rev Stats 1965, c 38, § 155-1. The comment of the prosecutor, however, does not fall within such prohibited conduct. The first of the quoted sentences was directed to the truth of the prosecutrix’ testimony and the second was addressed to the identification of the accused. Both were proper. People v. Jones, 33 Ill2d 357, 211 NE2d 261 (1965); People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963).

The defendant protests that the sentences imposed upon him are excessive and he urges that we reduce them. This court has the authority to lower sentences in appropriate cases (Ill Rev Stats 1965, c 38, § 121-9 (b) (4)) but the power granted this court should be used with considerable care and only where there are substantial reasons for doing so. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965); People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965). The 22-year-old defendant had been incarcerated in three states: Wyoming, Illinois and Virginia. The first two were sentences of 30 days each for the offenses of larceny and obtaining money by false pretenses, but the third was an eight-year sentence for robbery. The rape in the case at bar was committed 16 days after his release from the Virginia Penitentiary. The defendant’s sentence for rape is severe, but in view of his record and the brutality used upon the prosecutrix there is no sound reason for making it lighter.

Judgment affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.