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Mccullough v. Orcutt

SEPTEMBER 19, 1957.




Appeal from the Circuit Court of Iroquois county; the Hon. C.D. HENRY, Judge, presiding. Reversed and remanded.


On August 18, 1953, the instant complaint, consisting of two counts, was filed in the circuit court of Iroquois county. Subsequently and on April 17, 1954, an amended complaint was filed. In count one of the amended complaint Samuel D. McCullough sought to recover from defendant, Howard Orcutt, damages for personal injuries received by him and for other expenses alleged to have been incurred by him as a result of an automobile accident which occurred on August 21, 1951. This count alleged that plaintiff was a guest passenger in a car then being driven by the defendant, Orcutt, in a westerly direction on U.S. Highway No. 24; that the Orcutt car came into collision at the interesction of U.S. Highway No. 24 and Illinois State Highway No. 49 with a motor truck owned by the Eastern Illinois Clay Company and then operated by its employee and servant, James J. Wilson, now deceased, in a southerly direction on said Illinois State Highway No. 49.

The second count of the amended complaint was on behalf of Hazel McCullough, who was the wife of Samuel D. McCullough. She was not an occupant of either vehicle involved in, or was she present at, the collision, but her cause of action was predicated upon the alleged fact that she suffered a miscarriage after the accident, caused by the shock she sustained as a result of the injuries to her husband.

The defendant on October 9, 1954, filed his answer but no further steps were taken in the case until November 15, 1955, at which time the defendant filed his motion for leave to file a supplemental answer, a copy of the proposed supplemental answer accompanied said motion for leave to file. The trial court denied leave to file and the issues made by the amended complaint and answer were submitted to a jury resulting in a verdict, as to count one, in favor of the plaintiff, Samuel D. McCullough, for $12,500. As to the second count, the jury returned a verdict finding the defendant not guilty. After overruling all post-trial motions, judgments were rendered on the verdicts and the record is before us for review upon the appeal of the defendant, Howard Orcutt. The plaintiff in the second count, Hazel McCullough, has not appealed.

In count one of the amended complaint, the wilful and wanton misconduct charged against the defendant was (a) failure to stop and await traffic already in the intersection; (b) failure to allow the motor vehicle already in the intersection to pass out of the same before he entered it; (c) failure to keep a proper lookout; (d) driving at an unreasonable and excessive speed; (e) operating the motor vehicle with defective brakes; and (f), driving his car into the intersection when it was not clear of traffic.

In this count plaintiff charged that one or more of the aforesaid acts or omissions resulted in injuries to himself and that these alleged wilful and wanton acts caused his wife to suffer shock, strain and anxiety, and to become seized with nervous disorders, physical illness, premature labor pains, and, being pregnant, to miscarry and deliver a stillborn child. Plaintiff then alleged that by reason of the shock, strain, anxiety, nervous disorders, physical illness and miscarriage of his wife, he was required to expend large sums of money for doctor bills, hospital bills, nursing care and attention for his wife, and for funeral expenses and for the purchase of a burial lot for his stillborn child. The prayer of this count was for damages in the amount of $10,000, which, after the verdict brought in by the jury in the amount of $12,500, was amended, by leave of court, for the amount of the verdict as returned by the jury.

Counsel for appellant insists (1) that the evidence shows, as a matter of law, that the defendant was not guilty of any wilful and wanton misconduct and therefore the trial court erred in denying defendant's motion for an instructed verdict; (2) that the trial court erred in allowing the plaintiff to introduce incompetent and prejudicial evidence relative to the injuries alleged to have been sustained by his wife and the expenses which the plaintiff was required to pay for her hospital and doctor bills and for the funeral expenses and burial lot for the stillborn child; (3) that a covenant to terminate certain litigation against the administrator of the estate of the said James J. Wilson and his employer, Eastern Illinois Clay Company, was a general release, and not only released Wilson's estate and his employer but also the defendant as a joint tort-feasor.

Counsel for appellee insists that the evidence discloses a factual situation which presented a question for the jury to decide whether appellant was or was not guilty of wilful and wanton misconduct; that the verdict of the jury finding the defendant not guilty as to the claim of Hazel McCullough obviated any error committed by the court in the admission of incompetent and prejudicial evidence, and, finally, that the instrument designated as a covenant to terminate litigation was not a general release but amounted only to a covenant not to sue.

It is well established that on a motion for a directed verdict or for a judgment notwithstanding the verdict, the court does not weigh the evidence. It may properly consider only the evidence and the inferences to be drawn therefrom which are most favorable to the plaintiff, and it is only when there is no evidence tending to prove the plaintiff's case that the court can grant either a motion for a directed verdict or for a judgment notwithstanding the verdict. (Lindroth v. Walgreen Co., 407 Ill. 121, 130; Green, Admr. v. Keenan, 10 Ill. App.2d 53, 59.) In order to determine whether under this rule the court was required to submit the issues in this case to the jury, it is necessary to review the evidence found in this record.

U.S. Highway 24 is a paved highway running in an easterly and westerly direction. Illinois Route 49 is also a paved highway and runs north and south. Route 24 is a preferential highway and there are no stop signs on it for traffic going east and west, but there are stop signs on Route 49 for traffic going north and south. At about nine o'clock on the morning of August 21, 1951, appellant was driving his car in a westerly direction on Route 24 accompanied by appellee and two other guest passengers, Ralph Knight and Harold Gossett. Appellee was riding in the front seat with appellant who was driving the car and the other two guests were riding in the rear seat. Hazel McCullough, wife of appellee and plaintiff in count two of the amended complaint was not present in the car but was at her home in Watseka. Appellant entered Route 24 at a point about 1,000 feet east of the intersection where the accident occurred and for two blocks or more in each direction from the intersection, there were filling stations, restaurants and other small business establishments on both sides of Highway 24.

The intersection of these highways is located just west of the corporate limits of Crescent City, a village having a population between three and four hundred inhabitants. The motor truck driven by James J. Wilson was loaded with tile.

The evidence tends to prove that Mr. Wilson, the driver of the motor truck, stopped at the stop sign on the north side of Route 24 and then, after looking in both directions, proceeded south across Route 24. Appellant first saw the truck when one of his guests, Harold Gossett, yelled, "Lookout! there's a truck." At this time appellant was between 140 and 160 feet from the intersection and traveling at an approximate speed of 60 miles an hour, according to the testimony of two filling station attendants who saw his car approaching the intersection. Appellant and his passengers, Knight and Gossett, testified he was going about 35 to 40 miles an hour and appellant testified that he first saw the truck when Gossett shouted his warning; that he immediately applied his brakes and skid marks were observed on the pavement for approximately 75 feet. His car struck the truck about in the middle of the intersection. It was a clear, bright day, the pavement was dry and the view in the direction he was traveling was clear and unobstructed and he was familiar with the intersection, as he had lived in that community for several years and had driven on Route 24 on numerous occasions. A traffic survey made prior to the accident at this intersection showed a traffic count of 275 vehicles per hour passing through the intersection on a daytime setup. This would amount to one car using the intersection approximately every thirteen seconds.

We are asked to hold, as a matter of law, that the foregoing evidence shows the defendant was not guilty of wilful and wanton misconduct. Myers v. Krajefska, 8 Ill.2d 322, was an action by a wife as administrator of the estate of her deceased husband against the driver of the automobile in which her husband was riding as a guest passenger. The cause was tried by the court without a jury and in sustaining a judgment for the plaintiff the court said that where the trial court has heard the testimony and observed the witnesses the judgment should not be disturbed unless it is manifestly against the weight of the evidence. The court then called attention to the fact that our guest statute employs the term "wilful and wanton misconduct," and, after stating that it had examined the various cases cited by defendant from this and other jurisdictions, then said (pp. 328-329): "While it is to be noted that in many instances different wording, language and terminology is employed by the different courts in various instances, the basic general concept of the term as applied to the facts in the particular cases has remained essentially the same. The basic element in all of these cases indicates that liability can be founded under such a cause of action where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved. The knowledge concerning other persons can be actual or constructive. As indicated by the decisions of other states which do not employ this term, it 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 ...

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