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Fenberg v. Rosenthal





Appeal by plaintiff from the Superior Court of Cook county; the Hon. JOHN E. PAVLIK, Judge, presiding. Heard in the second division of this court for the first district at the April term, 1952. Judgment affirmed. Opinion filed December 9, 1952. Rehearing denied December 23, 1952. Released for publication December 23, 1952.


Rehearing denied December 23, 1952

Plaintiff sued defendant charging willful and wanton misconduct in the operation of his car as a result of which she, while a passenger in the car, was injured. From a judgment entered on a verdict finding defendant not guilty plaintiff appeals.

Plaintiff contends that the verdict is against the manifest weight of the evidence.

The accident happened between 1:30 and 2:30 a.m. June 29, 1947. Plaintiff, a 24-year-old unmarried woman, had come with her sister to Chicago from Memphis, Tennessee, on the evening preceding the accident, and prior to her coming it had been arranged for her to be introduced to defendant, a 26-year-old unmarried man. Plaintiff and defendant were returning from a date, which had included stops at an inn northwest of Chicago and at a side road parking place afterward. They were homeward bound in a southerly direction on Skokie highway, a 4-lane concrete roadway, when it commenced to rain very hard, causing poor visibility. Defendant was driving a new Chevrolet club coupe. The mechanical condition of the car was good, and the lights and windshield wipers were in working order. The major conflict of fact involves the speed of and manner in which defendant operated his car. Plaintiff testified that she looked at the speedometer once and "it was 40 or more"; that she asked defendant to slow down and "he would slow down" when she asked him; that he went off the pavement onto the shoulder twice before the accident; and that she was cautioning him again to slow down when he headed into the oncoming northbound car. Defendant testified that the rain affected visibility to the extent that he could see only from 30 to 40 feet in front of his car; that he was compelled to guide himself by watching the right-hand side of the road; that his car went off the pavement, and in attempting to bring it back onto the slab "the car seemed to slide in an easterly direction" and careened across from the southbound into the northbound lane; that at the time he was driving approximately 12 to 15 miles an hour. He stated that he had been driving in the rain 20 minutes or half an hour before the accident and denied that he had been off the road any time other than the one time just before the collision.

Plaintiff insists that the willful and wanton character of the accident is emphasized by an alleged occurrence at the roadside parking place before they started back to Chicago. According to plaintiff, defendant had attempted to take unwarranted liberties, which she repulsed. The argument is made that he was resentful at having been rebuffed and that this occasioned reckless driving. Defendant denies that he made any improper overtures or that any incident causing anger or resentment occurred. He insists that his difficulty in driving was occasioned solely by the abnormal weather conditions. We think, after a review of all the facts and circumstances of the case, that the question of whether or not defendant was guilty of willful and wanton conduct in the operation of his automobile at the time and place of the accident was a matter for the jury, and we are unable to say that the jury's finding in this respect is against the manifest weight of the evidence.

Plaintiff complains there was error in the refusal of the court to admit competent and material testimony.

The automobile with which defendant's car collided was driven by Mrs. Margaret Sliker. She testified by way of deposition on behalf of defendant, fixing the speed of defendant's automobile immediately before the accident at about 20 miles an hour, stating that prior to the accident she had not observed any southbound automobiles weaving in and out of traffic. Over objection, it was developed on cross-examination that she had been paid $700 by the defendant or his representative for medical expenses necessitated by injuries received in the accident. Upon the trial the court, out of the presence of the jury, sustained objections to questions in the deposition seeking to establish the payment of this money. Plaintiff claims that the exclusion of this testimony was error. She maintains that it was for the jury to determine whether or not this payment affected the credibility of the witness. Defendant, on the other hand, insists that the payment, being in the nature of settlement of a controversy, was inadmissible for any purpose. We are thus faced with an apparent conflict between two well established legal principles, the one that it is always permissible to prove payments of money to a witness for the purpose of showing interest or bias, thus reflecting upon credibility (West Skokie Drainage Dist. v. Dawson, 243 Ill. 175, 182; Schuman v. Bader & Co., 227 Ill. App. 28, 31); the other that offers of compromise or settlement are never admissible in evidence (Edwin S. Hartwell Lumber Co. v. Bork, 138 Ill. App. 506; Graff v. Fox, 204 Ill. App. 598).

The case of Jacobson v. Chicago Motor Coach Co., 328 Ill. App. 131, is the only case in this State where we find the question here presented to have been passed on. The court in that case held it error to have permitted the previous settlement with a witness injured in the same accident to be shown on cross-examination, citing 31 C.J.S. sec. 292, p. 1055, where the general rule is stated as follows:

"A settlement between a party and a third person cannot be shown, even though it relates to the matters involved in the action and the person with whom the compromise was made was in the same position as the party seeking to show such settlement. The rule above stated may be subject to exceptions under unusual circumstances."

This rule finds strong support in the following cases: Georgia Ry. & Elec. Co. v. Wallace & Co., 122 Ga. 547, 50 S.E. 478; Powers v. Wiley, 241 Ky. 645, 44 S.W.2d 591; Hawthorne v. Eckerson Co., 77 F.2d 844; Ashley v. Safeway Stores, 100 Mont. 312, 47 P.2d 53.

In Georgia Ry. & Elec. Co. v. Wallace & Co., supra, plaintiff sought to show on cross-examination that defendant's witness had received a money payment in settlement of damages suffered in the same accident. The court, holding this evidence inadmissible, said:

"It costs time, trouble, and money to defend even an unfounded claim. Parties have a right to purchase their peace. The fact that they have entered into negotiations to secure that end, and admissions or propositions made with the view to a compromise, are not admissible in evidence for or against either litigant, in the event there is a failure to adjust and suit follows. For a much stronger reason, evidence of a settlement with a third person injured in the same casualty ought to be excluded. * * * The rule against allowing evidence of compromises is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions therefrom in spite of anything said by the parties at the time of discussing the compromise, and in spite of anything which may be said by the judge in instructing them as to the weight to be given such evidence."

In Powers v. Wiley, supra, a witness called on behalf of defendant had been a passenger in the car with which defendant's car collided and plaintiff sought to cross-examine him as to a settlement with defendant prior to trial ...

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