Appeal from the Circuit Court of Tazewell county; the Hon.
JOHN T. CULBERTSON, Jr., Judge, presiding. Affirmed.
JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 1, 1959.
This is an appeal from a judgment of the Circuit Court of Tazewell County on a jury verdict awarding plaintiff $7500 in damages for personal injuries sustained in a collision between plaintiff's passenger automobile and a truck driven by defendant.
At the time of the accident, plaintiff was driving his automobile North on Route 121, a two-lane paved highway, and the collision occurred when defendant, proceeding in the opposite direction, turned to the left onto an intersecting gravel road. The defendant, a township highway commissioner, was operating a township truck loaded with gravel which was being transported for use on a township road.
The complaint alleged due care on the part of plaintiff and charged defendant with negligence in the operation of the truck which proximately caused the collision and plaintiff's resulting injuries.
The defendant denied the negligence charges and filed an affirmative defense alleging that at and before the accident, he was an elected township official performing a governmental function and therefore immune from tort liability as asserted in the complaint. Plaintiff did not reply to the affirmative defense and defendant then moved for judgment on the pleadings on the ground that the defense of governmental immunity stood admitted by plaintiff's failure to reply thereto. Denial by the trial court of defendant's motion is assigned as error.
Defendant contends that pursuant to Section 32 of the Civil Practice Act, (Chap. 110, Ill. Rev. Stats. 1957), plaintiff was required to file a reply to the defense of immunity asserted in defendant's answer and that as the result of plaintiff's failure in that respect, the affirmative defense stands admitted. Such contention cannot be sustained for the reason that the record discloses that defendant introduced evidence to support the affirmative defense and in so doing must be deemed to have waived a reply. The argument advanced by defendant was rejected in Cienki v. Rusnak, 398 Ill. 77 and in so doing the court said:
"The failure to file a reply did not constitute an admission of the well-pleaded facts set forth in the amended answer for the reason that defendant, in introducing evidence in support of each affirmative defense, must be deemed to have waived a reply, regardless of the allegedly erroneous order of February 28 and regardless of his denial of waiver made at the commencement of the trial. Where, in the absence of a reply, defendant introduces evidence to prove an affirmative defense, the failure to file a reply is waived and the absence of a reply does not constitute an admission. (Watt v. Cecil, 368 Ill. 510; Piot v. Davis, 241 Ill. 434.) This is true even where defendant specifically asserts at the time of the trial that he does not waive the failure to file a reply. The important and controlling circumstance is not what the defendant says but what he does, and the introduction of evidence in support of affirmative defenses constitutes the waiver."
The same rule was applied in Sottiaux v. Bean, 408 Ill. 25; Klukas v. Union Life Ins. Co., 348 Ill. App. 553. In view of these decisions, it must be held that defendant has not preserved the point now argued.
Alternatively, the defendant argues that if the procedural question raised by the motion for judgment on the pleadings was correctly resolved by the trial court, then at the close of the evidence a verdict for the defendant should have been directed or judgment for the defendant notwithstanding the verdict entered on the post trial motion. Such contention raises the question whether under the law of this state as it now stands, the defense of governmental immunity is available to defendant. Relied upon as supporting defendant's position are Nagle v. Wakey, 161 Ill. 387; and Mower v. Williams, 402 Ill. 486. In the Nagle case, the action was against the highway commissioners of a town for negligence in failing to provide railings for a bridge. The court held the commissioners were not liable because as an agency through which the town performs a public duty they were clothed with discretion in the exercise of the duties enjoined upon them and therefore, they might not be held liable for negligence in performing such duties to the public so long as they honestly exercised their discretion and judgment. Admittedly, analogy between the facts in the Nagle case and those appearing in the instant record is lacking. Here it is not claimed that plaintiff's injury resulted from the improper manner in which defendant discharged the duty of repairing or improving the highways within his jurisdiction. The complaint charges the defendant with negligently operating a truck as a result of which plaintiff was injured.
The defendant in the Mower case, decided in 1949, was an employee of the state highway department and was operating a state truck equipped with a snowplow and was engaged in clearing snow from the highway when the truck collided with a car in which the plaintiff was riding. The Supreme Court held that the removal of snow and ice from the highway was a governmental as distinguished from a ministerial function and since at the time of the accident, defendant was engaged in performing a duty of a governmental character, he was not liable for defects in judgment in carrying out such duty. While the Mower case might appear to furnish some support for defendant's contention, we think the effectiveness thereof as a precedent in the instant case has been destroyed by the Supreme Court's opinion in Hering v. Hilton, 12 Ill.2d 559 which was decided in 1958.
In the latter case, the defendant, who was driving a township truck, was engaged in cutting grass and weeds along the roadways. Plaintiff sued for personal injuries sustained in a collision between her automobile and the truck driven by defendant. The complaint as originally filed, charged defendant with negligence in the operation of the truck. At the close of plaintiff's evidence, the defendant filed an affirmative defense alleging immunity from liability by reason of the fact that he was engaged in maintaining public roads for a township. At the close of all the evidence, the trial court, on the basis of the affirmative defense, directed a verdict for defendant. Plaintiff thereupon amended the complaint by adding a willful and wanton misconduct count. Defendant's motion for a directed verdict on the added count was denied. On appeal to this court we held that as a matter of law, defendant was not guilty of wanton and willful misconduct and reversed the cause (13 Ill. App.2d 132). Having granted leave to appeal, The Supreme Court reversed and remanded the cause to the Appellate Court with directions to reconsider the willful and wanton misconduct issue. The basis of the Supreme Court's decision is found in the following excerpt from its opinion:
"We must agree with plaintiff that the Appellate Court's misconception of why the trial court granted the directed verdict on the negligence count was material to the Appellate Court's conclusion that defendant was not guilty of willful and wanton misconduct as a matter of law. Although the Appellate Court had already reached that conclusion from its analysis, nevertheless, it buttressed its conclusion with the observation that since the trial court did not even find evidence of negligence, defendant's conduct could hardly be willful and wanton. However, as hereinbefore noted, the trial court granted the directed verdict on the negligence count, not because there was no evidence of negligence, as the Appellate Court apparently thought, but because of the affirmative defense that defendant's performance of a governmental function relieved him of liability for negligence, which issue was not considered by the Appellate Court. The trial court was misled by what was erroneously determined in the Mower case as to the affirmative defense, but this issue is not reviewable in the absence of a cross appeal."
Two of the judges, while dissenting from the court's determination on the willful and wanton misconduct issue, agreed with the majority opinion that the decision in Mower v. Williams was in error and that an employee who drives a motor vehicle for a government agency is not clothed with governmental immunity. Defendant insists that since the issue of governmental immunity was not reviewable on the appeal in the Hering case, what the Supreme Court said on ...