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Smith v. Polukey

AUGUST 12, 1959.

BETH SMITH, A MINOR, BY GEORGE A. SMITH, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

DUANE R. POLUKEY AND VIVIAN M. WALKER AND COTTA PHARMACY, INC., AN ILLINOIS CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Winnebago county; the Hon. ARTHUR V. ESSINGTON, Judge, presiding. Affirmed in part and reversed in part.

JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 2, 1959.

This is a suit for damages for personal injuries sustained by the plaintiff, Beth Smith, while riding as a guest passenger in an automobile owned and operated by the defendant, Polukey, which came into collision with another automobile operated by the defendant, Walker. Plaintiff joined as a party defendant Cotta Pharmacy, Inc., an Illinois corporation, alleging it to be liable to plaintiff as the defendant Walker's principal or master. The cause was tried before a jury which returned a verdict for the plaintiff against all three defendants in the amount of $30,000. Judgment was entered on the verdict, post-trial motions of the three defendants were denied, and each of the three defendants perfected appeals which are now before this court.

No questions are raised on the pleadings. Defendant Polukey urges that the verdict against him is contrary to the manifest weight of the evidence, no proof of wilful and wanton misconduct having been adduced. Defendant Walker contends that the verdict against her is against the manifest weight of the evidence, and in particular that plaintiff's freedom from contributory negligence was not proved. Mrs. Walker also urges as reversible error the giving of plaintiff's instructions No. 9 and No. 17. Defendant Cotta Pharmacy, Inc., maintains that not only does the evidence fail to prove defendant Walker guilty of negligence but that no proof of agency was offered.

The evidence offered will be summarized in the following paragraphs. On September 26, 1957, between 7:00 and 7:30 p.m., the defendant Polukey, aged 18, who lived in Durand, Illinois, picked up the plaintiff, a young lady 16 years of age, at her home in Rockford. The purpose of the trip was to pick up a friend in Rockford and drive the friend to nearby Loves Park, Illinois. However, not finding the friend at either his home or his place of employment, defendant Polukey proceeded to drive the plaintiff to her home. While returning enroute to plaintiff's home, Mr. Polukey drove south on Springfield Avenue, on the westerly edge of Rockford, toward U.S. Highway 20, also known as West State Street. West State Street consisted of four lanes of traffic running in a generally east-west direction. After stopping at the intersection of Springfield Avenue and West State Street, defendant Polukey turned westerly on West State Street and proceeded in a westerly direction a distance of about three blocks to a point where Monroe Street intersects West State Street from the north but does not cross West State Street. The collision occurred at this T intersection of West State Street and Monroe Street.

The area between Springfield Avenue and Monroe Street was an area built up with homes, shops, stores, gas stations, and other business establishments. On the north side of West State Street, it was intersected by three streets from the north, west of Springfield Avenue, being from east to west; Victory, some 500 feet west of Springfield; Woodrow, some 300 feet west of Victory; and Monroe, about 325 feet west of Woodrow. In the vicinity of Monroe, West State Street was illuminated by overhead mercury or sodium vapor lights. At each intersection mentioned there was a "Stop" sign for traffic entering West State Street, and throughout the area in question, West State Street had a posted 40 mile per hour speed limit which was known to the plaintiff, defendant Polukey, and defendant Walker, all of whom were also familiar with the neighborhood.

Miss Smith, the plaintiff, testified that after entering West State Street from Springfield Avenue, the Polukey automobile turned into the inner or passing lane for westbound traffic, and between Springfield Avenue and Victory passed another automobile at which time the Polukey car was going 40 to 50 miles per hour; that the defendant Polukey maintained this speed to Woodrow Street, which was one block east of Monroe Street, at which point his speed started to increase. The plaintiff further testified that at a point about 200 feet east of Monroe Street she looked at the speedometer of the car in which she was riding, that it was then going 60 to 65 miles per hour and that its speed was still increasing. According to the testimony of the plaintiff, at some point east of Monroe Street, she saw the Walker car stopped at Monroe Street, about five feet north of the north edge of the pavement of West State Street and facing south. Plaintiff testified that she looked away and that when she looked back the Walker vehicle was moving slowly in a generally southerly direction and was a little better than half a car length onto the concrete on West State Street. At that moment, the Polukey car was 200 feet east of Monroe, and the witness remembered nothing further except that she screamed.

In her testimony the plaintiff stated that both cars had headlights lighted; that she did not hear if any horn was sounded by either driver and that she could not remember if the brakes of the Polukey car had been applied. The testimony of the plaintiff was that during the interval between Springfield Avenue and the point of collision she did not recall saying anything to the driver about driving too fast or passing other vehicles but only that she screamed when the Polukey car was about 200 feet east of Monroe Street and was traveling 60 to 65 miles per hour and still accelerating.

It was about 9:00 p.m., when the Polukey car traveling west on West State Street, struck the Walker car traveling southerly through the intersection. The front end of the Polukey car struck the left side of the Walker car near its front end, and both vehicles were damaged beyond repair.

The impact occurred just north of the double yellow line marking the center of the four-lane highway. As a result of the collision, James Black, a passenger in the Walker car, was killed, defendant Mrs. Walker, and Miss Smith, the plaintiff, were seriously injured, and the defendant Polukey also sustained injuries. Mrs. Walker remained unconscious for four days after the occurrence and suffered a retrograde amnesia, as a result of which she had virtually no recollection of the collision or events leading up to it. The defendant Polukey also testified that he had no recollection whatever from a point 2 to 2 1/2 blocks east of the scene of the collision, at which time he testified that he was traveling 40 to 50 miles per hour.

On September 26, 1957, the defendant Walker's husband was employed as a registered pharmacist by Cotta Pharmacy, Inc., an Illinois corporation, which owned and operated two drug stores in Rockford, one known as the "Main Store" and the other known as the "Monroe Street Store." The evidence is undisputed that James Black, who was a passenger in the Walker car at the time of the collision, was in charge of the Monroe Street Store of Cotta Pharmacy, Inc., and at the time of the collision had with him the daily receipts from the Monroe Street Store. It is also undisputed that Mrs. Walker, on the evening in question, had at the request of her husband, gone to the Monroe Street Store to pick up Mr. Black, whose custom and practice it was to bring the daily receipts from the Monroe Street Store to the Main Store before closing and to deposit them in the Main Store safe. There was testimony that Mr. Black lived in the same neighborhood as the Walkers and that Mr. Walker had requested his wife to pick up Mr. Black whose car was in the garage, so that he could go home with them. On this particular evening, the two principal officers of Cotta Pharmacy, Inc., were not present in the Main Store, as was their practice, but instead the store was staffed by Mr. Walker, the only pharmacist, together with a number of clerks. The president of Cotta Pharmacy, Inc., testified that it was not compulsory or necessary that receipts from the Monroe Street Store be deposited each night in the Main Store, since there was some type of depository in the Monroe Street Store, but that "as a rule" the person in charge of the Monroe Street Store did so. This corporate officer further testified that Mr. Walker was not in charge of the Main Store on the evening in question and that no officer of Cotta Pharmacy, Inc. had authorized either Mr. Walker or his wife or anyone else to pick up Mr. Black, nor was he aware that the Walkers intended to or had in the past picked up Mr. Black and delivered him to the Main Store for the purpose of depositing receipts.

The first issue to be considered is the contention of the defendant Polukey that the verdict against him is contrary to the manifest weight of the evidence and that the evidence falls short of establishing wilful and wanton misconduct. Although the courts of this State have had occasion to define wilful and wanton misconduct in numerous cases, it has always been done in general terms and with no attempt to indicate that any particular type of misconduct may be said to be wilful and wanton under all circumstances. One frequently quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 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." As was recently stated by the Supreme Court in Hering v. Hilton, 12 Ill.2d 559, 562, there are some variations in the phraseology of the definitions of wilful and wanton misconduct in the decided cases, but the basic concept as applied by our courts has been the same, and since conduct is usually a matter of degree, no hard-and-thin-line definition can be made. The defendant Polukey cites several cases to the effect that the mere fact that a vehicle is driven at a speed prohibited by law will not furnish a sufficient reason for holding that an injury was the result of wilful or wanton misconduct. However, it would appear that the true rule in Illinois is that speed is a circumstance which may be taken into consideration bearing upon the presence of wilful and wanton misconduct, and in a given case might of itself establish wilful and wanton misconduct, taking into consideration the degree of speed with reference to all other surrounding facts and circumstances, Bartollucci v. Falleti, 382 Ill. 168, 175; Clarke v. Storchak, 384 Ill. 564, 580; Streeter v. Humrichouse, 357 Ill. 234, 240; Ashby v. Irish, 2 Ill. App.2d 9, 15; Trust Co. of Chicago v. Ancateau, 317 Ill. App. 186, 195; Strunk v. Stronberg, 326 Ill. App. 265, 273; Signa v. Alluri, 351 Ill. App. 11, 17. In the measurement of defendant's conduct, this court cannot consider the conflicts in evidence nor its weight nor preponderance nor the credibility of witnesses but must take the evidence as true which is most favorable to plaintiff's cause of action. If such evidence and its reasonable intendments most favorable to plaintiff tend to establish wilful and wanton misconduct, the defendant's post trial motion is properly denied.

[3-6] Plaintiff testified that at her last point of recollection 200 feet east of the point of impact the Polukey car, according to its speedometer, was traveling 60 to 65 miles per hour and that its speed was still increasing. The photographs of the automobiles further support this testimony as to speed. Defendant Polukey was traveling in a closely built up neighborhood with numerous intersecting streets and with a posted speed limit of 40 miles per hour. The evidence in the record tends to indicate that defendant Polukey did not at any time prior to the impact observe the automobile driven by defendant Walker, in spite of the fact that the Walker automobile had its headlights operating and the area surrounding the intersection was lighted by overhead lights of considerable intensity. From the record it appears that a jury could have concluded that defendant Polukey did nothing to avoid the collision. The defendant Polukey's excessive speed and failure to maintain any lookout, coupled with the circumstances to which we have referred, in our opinion raised a question of fact for the jury. Whether an act is wilful and wanton is a question of fact depending upon the particular circumstances of each case and is normally a jury question, Myers v. Krajefska, 8 Ill.2d 322, 328; Rohrer v. Denton, 306 Ill. App. 317, 324; Kunz v. Larson, 15 Ill. App.2d 126, 133. As was recently stated in Hering v. Hilton, 12 Ill.2d 559, 564: ". . . defendant need not have intended any harm should ensue, nor actually know for sure that there would be a collision; 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 fact that the defendant Polukey was traveling upon a preferential street or highway did not give him an absolute right-of-way (Anderson v. Middleton, 350 Ill. App. 59, 63), such that he could ignore traffic upon intersecting streets and, regardless of the circumstances, insist that he could not properly be charged with wilful and wanton misconduct.

Defendant Polukey relies heavily upon the decision of this court in Strunk v. Stronberg, 326 Ill. App. 265. Apart from the obvious observation that every case of this kind must turn on its own unique set of facts, we would simply point out that the Strunk case was one wherein the defendant's vehicle and the automobile in which plaintiff was riding were proceeding in opposite directions when plaintiff's driver suddenly caused his stopped vehicle to make a left hand turn into the path of ...


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