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Weinrob v. Heintz

OPINION FILED JUNE 1, 1951

ALEC E. WEINROB, APPELLANT,

v.

JAMES HEINTZ, APPELLEE.



Appeal by plaintiff from the Superior Court of Cook county; the Hon. WALTER R. O'MALLEY, Judge, presiding. Heard in the first division of this court for the first district at the December term, 1950. Judgment affirmed. Opinion filed June 1, 1951. Rehearing allowed September 17, 1951. New opinion filed February 4, 1952. Released for publication March 25, 1952.

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.

Rehearing allowed September 17, 1951

Alec Weinrob, a Chicago lawyer filed a complaint in the superior court of Cook county against James Heintz, alleging negligence in the operation by defendant of his motor vehicle on March 25, 1947, while plaintiff was a passenger at the request of defendant for the purpose of transacting business for defendant, as the proximate result of which plaintiff was injured. Answering, defendant denied the material allegations of the complaint and in an amendment alleged that at the time of the occurrence plaintiff was on a business trip for his employer, Rel Foods, Inc., and that his injuries arose out of and within the scope of his employment. Plaintiff in a reply denied the allegations of this affirmative defense. The case was tried on the issues joined. The court submitted to the jury, in addition to two forms of general verdict, four interrogatories, all of which were answered in the affirmative.

The interrogatories were:

"No. 1. Was the plaintiff, Alec E. Weinrob, immediately prior to and at the time of the accident here in question riding in the Packard automobile owned and operated by the defendant, James Heintz, as a guest of said defendant without payment for such ride?

"No. 2. Was the defendant, James Heintz, careless or negligent in the manner in which he operated and controlled his automobile immediately prior to and at the time of the accident in question?

"No. 3. Was the defendant, James Heintz, employed by and performing a service for Rel Foods, Inc., a corporation, while he was driving his automobile from Chicago to Tuscola, Illinois, March 25, 1947?

"No. 4. Was the plaintiff, Alec Weinrob, employed by and performing a service for Rel Foods, Inc., a corporation, while he was riding in the automobile owned and operated by the defendant, James Heintz, from Chicago to Tuscola, Illinois, March 25, 1947?"

At no time during the trial did plaintiff move to withdraw from the jury the issue that he could not be classified as an employee. A general verdict of not guilty was returned. Judgment was entered on the verdict and special findings. Thereafter, a motion for new trial was filed by plaintiff. The only assignments in plaintiff's motion for a new trial with reference to the special interrogatories were in paragraph 4, which stated that "the court erred in giving Interrogatories Numbers 1, 2, 3 and 4 to the jury," and in paragraph 5, stating that "the answer of the jury to the Interrogatories is inconsistent with the general verdict." The court denied the motion for a new trial and plaintiff appealed from the judgment theretofore entered.

On June 1, 1951, an opinion was filed which directed that the judgment be reversed and that the cause be remanded for a new trial. A dissenting opinion was also filed. In due time defendant filed a motion supported by an affidavit, asking for an extension of time of 15 days in which to file his petition for rehearing. Counter-suggestions that the court lacked power to allow the extension were filed. On June 13, 1951, the court allowed the motion. On June 18, 1951, the Supreme Court entered its order assigning the justices of the Appellate Court for the First District. In that order two of the justices in the First Division, where the instant case is pending, were assigned to the Second and Third Divisions and two justices sitting in the Second and Third Divisions were assigned to this court (First Division). Thereupon the justices assigned to this court (First Division) were and are the justice who dissented and who was reassigned to the First Division, and two justices who previously sat in the Second and Third Divisions. On June 19, 1951, the defendant filed his petition for rehearing. On September 17, 1951, the court allowed the petition for rehearing.

Plaintiff, in his answer to the petition for rehearing (filed September 21, 1951), suggests that the petition was improperly granted because it was not filed "within 10 days after a decision is entered of record," as prescribed by Rule 13 of this court. Plaintiff points out that an examination of the rules discloses that whenever an extension of time may be granted, there is a provision for such extension in the rules, calling attention to Rules 1, 9, 20 and 33. In Brant v. Chicago & Alton R.R. Co., 294 Ill. 606, the court held that if a motion to file a petition for rehearing is made in the Appellate Court during the term at which the opinion was filed, even though the time allowed under the rules had expired, the court may act upon the motion at the next term, and if it denies the motion it may again reconsider it at the same term and permit the petition to be filed, and that in such case the time for filing a petition for certiorari will be computed from the date the petition for rehearing is denied. It will be observed that Sec. 75 of the Civil Practice Act (Par. 199, Sec. 75, Ill. Rev. Stat. 1951 [Jones Ill. Stats. Ann. 104.075]), provides that an application to the Supreme Court to cause it to grant leave to appeal shall be made within 40 days after the judgment of the Appellate Court shall have become final either through the denial of the petition for rehearing or the expiration of the time within which a petition for rehearing may be filed. We are convinced that despite the absence of a rule providing for an extension of time in which to file a petition for rehearing that we have the inherent power to grant such a petition, and that plaintiff's point is without merit. Plaintiff also suggests that since the opinion filed on June 1, 1951, was written by a justice now assigned to the Third Division of this court and concurred in by a justice now assigned to the Second Division that it would be improper for the court as now constituted to consider the case and render an opinion which might be at variance with the opinion previously filed. On a similar point urged in the case of Glasser et al. v. Essaness Theatre Corp. et al., No. 45370, wherein an opinion is being filed concurrently with this opinion [346 Ill. App. 72], MR. JUSTICE NIEMEYER discusses this subject. Therein he carefully reviews the decisions on the question. We adopt the views therein expressed as applicable to the instant case.

Plaintiff asserts that the court erred in submitting to the jury Interrogatory No. 1 and that the answer "thereto is contrary to law." The jury answered that Mr. Weinrob at the time of the occurrence was riding "as a guest" in defendant's car. By its answer to Interrogatory No. 2 the jury found that the defendant was negligent in the operation of his automobile, causing injuries to the plaintiff. By its answer to Interrogatory No. 3 the jury found the defendant was employed by and performing a service for Rel Foods, Inc., while driving his automobile from Chicago to Tuscola, Illinois, on the day of the occurrence. Plaintiff states that the uncontradicted evidence shows that at the time of the occurrence he was riding in defendant's automobile at the latter's request and that defendant was then embarked on a mission of pecuniary benefit to himself and plaintiff. It was incumbent upon plaintiff to prove that he was not a guest at the time of his injury. Miller v. Miller, 395 Ill. 273; Leonard v. Stone, 381 Ill. 343. In Connett v. Winget, 374 Ill. 531, the court said that in determining whether a person is a guest within the meaning of the "guest statutes" consideration is given to the person or persons advantaged by the carriage; that if it confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if the carriage tends to promote mutual interests of both the person carried and the driver, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest within the meaning of such enactments. See also Miller v. Miller, supra, Boyd v. Mueller, 320 Ill. App. 303.

Plaintiff testified that on March 24, 1947, defendant telephoned him and asked him to meet him at the Stevens Hotel the following morning to drive to Tuscola, Illinois, for the purpose of purchasing a corn canning plant; that plaintiff was to accompany defendant to check the legal details concerning the title to the plant; that defendant "was interested in the deal" because he told witness that he, defendant, was to be the broker in the deal; that witness thought at the time that defendant was taking him to Tuscola and bringing him back the same day; that defendant told witness that he expected to sell the product of the plant on a commission basis; and that witness knew that a contract was drawn up with reference to a brokerage corporation of which defendant was to be the head. The canning plant was being purchased from the Crites Milling Company. In December 1946, a charter was issued by the State of Illinois to the Douglas County Canning Corporation, which purchased the plant at Tuscola on March 25, 1947. Harold Lurie who, in March 1947, was manager of Rel Foods, Inc., testified that defendant "was the person who originally submitted the canning plant for purchase by us." He also testified that defendant was vice president of the Douglas County Canning Corporation "before the accident occurred." Lurie testified that in addition to defendant "being vice president of the Douglas County Canning Corporation, it was also agreed that he would become a food broker for that concern" and that he later did become a food broker "for them and was paid by them." Rel Foods, Inc., had no interest in the 1947 Packard which defendant was driving and did not pay any of the expense of its operation. Plaintiff, defendant and Mr. Hugh Tate started out from in front of the Stevens Hotel in Chicago the morning of March 25, 1947, riding in defendant's 1947 Packard automobile, Tate and defendant sitting in the front seat and plaintiff in the rear seat. Defendant was driving. The roads were snowy, wet and icy. Some 10 or 15 miles after leaving Kankakee, Illinois, the car went off the road, turned over two or three times, and all of the parties were thrown out of the car. Tate and plaintiff testified that immediately before the occurrence defendant was driving south and turned his face almost completely around to the north. Defendant said that the car veered to the left and that he lost control of it. Plaintiff sustained serious injuries and was incapacitated for a considerable length of time. There was evidence that he is still incapacitated as a result of the accident.

Defendant testified that he did not have a conversation with plaintiff relative to the trip to Tuscola; that he talked only to Lurie and Tate about the trip; that he picked plaintiff up in front of the Congress or Stevens Hotel at 8:00 a.m. on March 25, 1947; that Tate and he were to drop plaintiff off at Tuscola and then continue on to Paducah, Kentucky; that witness had nothing to do with the deal in Tuscola; that he and Tate, on behalf of Rel Foods, Inc., were to inspect a canning plant in Paducah, Kentucky; that before the accident he talked with plaintiff concerning the latter's return trip to Chicago by train; that he knew he was to meet plaintiff the morning of March 25th because he had talked with Lurie with reference thereto; and that he had no individual interest in that trip. Defendant was corroborated by plaintiff's witness Tate. Mr. Tate resides at Tuscola. He has been manager of the Douglas County Canning Corporation "since it originated in 1947." Tate testified that on March 24, 1947, he talked with Lurie, who told him (witness) that he would send an attorney to set up the papers "and check what was necessary"; that plaintiff was sent on the trip by Lurie; that witness and defendant did not intend to stop at Tuscola with reference to the deal there but were to proceed to Paducah, Kentucky in behalf of Rel Foods, Inc.; that defendant had nothing to do with the consummation of the deal in Tuscola and had nothing to do with the Douglas County Canning Corporation. The total consideration for the cannery deal at Tuscola was $20,000, of which $5,000 had previously been given as a deposit. Harold Lurie testified that Hugh Tate, Rel Foods, Inc., and ...


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