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Fox v. Hopkins





Appeal by defendant from the Circuit Court of Fulton county; the Hon. WILLIAM M. BARDENS, Judge, presiding. Heard in this court at the May term, 1951. Affirmed. Opinion filed May 31, 1951. Released for publication June 26, 1951.


The plaintiff, Phyllis Ilene Fox, obtained a judgment for $6,000 against the defendant, George W. Hopkins, for personal injuries resulting from a collision between two automobiles. The defendant appeals from such judgment.

On March 20, 1949, about 7 p.m., plaintiff was riding in the front seat of an automobile which she did not own or in any way have control of. The automobile was then being driven south on the westerly side of a two lane highway, by Charles Johnson. At the same time the defendant was driving his automobile north on the same highway. The two cars collided head on, on the westerly half of the pavement, at a time when the Johnson car was approaching and about 100 feet below the crest of a rather steep hill, and defendant's car had just passed over the crest and was descending. As a result plaintiff received the injuries complained of.

The undisputed evidence shows that at the time of and immediately before the collision defendant's car was being driven on the west side of the pavement. In fact, defendant, as a witness in his own behalf, testified that as the two cars approached one another, when driving 20 to 30 miles per hour, he reached down to pick up cigarettes which he had dropped on the floor of his car, and that after he "came up again" the Johnson car was "right smack in front" of him, he was "clear over on Johnson's side of the road," and the collision then occurred.

Defendant further testified that as he dropped the cigarettes he "crossed his legs down there" and set his foot on the brakes, but that the brakes stuck and pulled his car to the west, and that about a week before he had had his car overhauled but did not have any work done on the brakes.

The first contention of defendant is that the court erred in admitting over defendant's objection evidence of the intoxication of defendant at the time of the collision, although the complaint contained no charge that at the time of the collision defendant was under the influence of intoxicating liquor.

So far as is material to such contention, the complaint charged that defendant was careless and negligent in the operation of his automobile in that he negligently and carelessly failed to keep a proper lookout ahead, and that defendant's automobile was driven by defendant on the left or west half of the highway contrary to Sec. 54 of Ch. 95 1/2 of the Illinois Revised Statutes 1949 [Jones Ill. Stats. Ann. 85.183] and that as a proximate result of one or more of such acts of negligence the automobile which he was then driving collided with the Johnson automobile.

Defendant's answer denied such charges of negligence, and charged that plaintiff's injuries were due to her negligence and the negligence of the driver of the car in which she was riding, and as an affirmative defense alleged plaintiff's injuries were due to an unavoidable accident in that the brakes on defendant's car, without his fault, were not set evenly and became locked, and because thereof he was unable to control the course of his car. Plaintiff's replication denied such allegations.

In our opinion the record contains no evidence tending to show that plaintiff or the driver of the car in which she was riding was guilty of any negligence whatever.

Defendant as an adverse witness was the first witness called by plaintiff. Counsel for plaintiff then asked defendant if he drank any intoxicating liquor on the day of the accident. Defendant's counsel objected on the ground that there was nothing in the complaint charging intoxication, which objection was overruled. Defendant's answer to the question was "No." Later, when again called by plaintiff as an adverse witness, he was asked by plaintiff's counsel if he was the George W. Hopkins who on March 21, 1949, was charged in an information filed in the County Court with driving an automobile while under the influence of intoxicating liquor on March 20, 1949. The same objection was made and overruled and the defendant then said, "That is right." Plaintiff, over the same objection, was then permitted to show by defendant that on March 30, 1949, defendant pleaded guilty to such charge. Later a witness for plaintiff, over the same objection, was permitted to testify that shortly after the accident he smelled liquor on defendant's breath, and another witness was permitted to testify that the next morning after the accident the defendant said to such witness, "It was my fault. I was dead drunk that night. I didn't know where I was at and I was looking for a pack of cigarettes on the floor board of my car."

The defendant as a witness in his own behalf testified that he did not "recall" making such quoted statement, and that he pleaded guilty in justice court because he did not want to lay in jail.

The only Illinois case called to our attention in which a somewhat similar question of pleading has been raised is Blake v. Ewers, 341 Ill. App. 382, reported as an abstract decision. There the jury found the defendant not guilty. The trial court, over the objection of plaintiff, permitted the defendant to introduce evidence that the plaintiff was intoxicated at the time he was injured by being struck by defendant's car. On appeal by the plaintiff the Appellate Court held that such testimony of intoxication was inadmissible under the answer filed by defendant as no charge of intoxication was set forth therein. In so holding the Appellate Court said: "Section 167, paragraph 43, Sub-paragraph 4 of the Practice Act provides that the facts constituting any affirmative defense and any defense which by other affirmative matters seeking to avoid the legal effect or defeat the cause of action set forth in the plaintiff's complaint in whole or in part and any ground or defense whether affirmative or not which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise must be plainly set forth in the answer or reply. This requirement of the Civil Practice Act was designed to avoid the very controversy that has arisen in this case."

The Civil Practice Act (Ch. 110, Ill. Rev. Stat. 1947) does not contain any similar requirement as to a complaint, but merely provides (Sec. 33, Par. 157) [Jones Ill. Stats. Ann. 104.033] that "All pleadings shall contain a plain and concise statement of the pleader's cause of action, counterclaim, defense, or reply, . . ." and that "Pleadings shall be liberally construed with a view to doing substantial justice between the parties."

Few cases from other States have been called to our attention in which such question of pleading has been raised. Cases supporting the defendant's contention are: Law v. Gallegher (Delaware Supreme Court) 197 A. 479; Surkey v. Smith (Tex. Civ. App.), 136 S.W.2d 893, and Lubliner v. Ruge, 21 Wn. 881, 153 P.2d 694. Contrary holdings are: Jones v. Cary, 219 Ind. 268, 37 N.E.2d 944; Southwestern Bell Telephone Co. v. Ferris (Tex. Civ. App.), 89 S.W.2d 229; Milhouse v. Stroud, 134 S.C. 17 (Supreme Court of South Carolina), 131 S.E. 619; Sharpton v. Railway Co., 72 S.C. 172, 51 S.E. 553; Shelton v. Railway, 86 S.C. 102, 67 S.E. 899; Bates v. Tirk, 147 ...

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