Appeal from the Circuit Court of Henry County; the Hon. GEORGE
O. HEBEL, Judge, presiding. Reversed and remanded.
Rehearing denied July 8, 1963.
The plaintiff Carl S. Eggimann, as Administrator of the estate of Robert E. Eggimann, deceased, brought an action in two counts under the wrongful death act to recover from David Wise, defendant, damages on behalf of the next of kin of Robert E. Eggimann, deceased, and a third count in the same suit by the administrator sought to recover for the funeral and burial expenses of the decedent. The plaintiffs Arthur Walgrave and Wilbur Walgrave, as Administrators of the estate of Virgil M. Walgrave, deceased, brought a separate action under the Wrongful Death Act in two counts to recover from the same defendant damages for the benefit of the next of kin of Virgil M. Walgrave, deceased, and a third count in the same suit by those administrators sought to recover for the funeral, medical and hospital expenses of that decedent. These suits were consolidated for trial, resulting in verdicts by the jury for each of the plaintiffs administrators on Counts I, II, and III of each Complaint, the verdicts for the plaintiff Eggimann being $5000 on Counts I and II and $853.15 on Count III, and the verdicts for the plaintiffs Walgrave being $7500 on Counts I and II and $3894.39 on Count III. An appeal is taken by the defendant from the judgments for $5853.15 for the plaintiff Eggimann and $11,394.39 for the plaintiffs Walgrave, entered upon those verdicts, the Court having denied the defendant's post-trial motions for judgment notwithstanding the verdict or new trial.
Count I of each complaint alleges ordinary negligence against the defendant David Wise. Count II of each Complaint alleges wilful and wanton conduct of the defendant. Count III of each Complaint was for the funeral, or hospital and medical, expenses of each decedent and alleges the same were incurred by the respective administrators because of the defendant's negligence. In each case the defendant by his answer, in substance, denied the allegations of the Complaint. The defendant also filed a counterclaim in the Walgrave case for personal injuries against the administrators of the estate of Virgil M. Walgrave, deceased, alleging ordinary negligence against that decedent. The plaintiffs-counterdefendants Walgrave denied, in substance, the allegations of the counterclaim. At the close of all the evidence the Trial Court granted a motion by the administrators of the estate of Virgil M. Walgrave, deceased, to instruct the jury to find those counterdefendants not guilty under the counterclaim.
Various alleged errors are relied on by the defendant-counterplaintiff for reversal, namely: (1) as a matter of law, in this action the plaintiffs administrators of the decedents could not sue (in Count III) for the funeral, hospital, and medical expenses of their intestates; (2) there was no competent evidence of pecuniary loss by the respective next of kin, and the refusal of certain defendant's instructions on that subject; (3) the giving of certain plaintiffs' instructions, including those as to the forms of verdicts; (4) the giving of the Court's Instruction No. 1; (5) the directing of a verdict for the counterdefendants Walgrave on the counterclaim; (6) denial of the motion of the defendant Wise to direct a verdict in his favor as to the complaint of the plaintiff Eggimann as administrator; and (7) not permitting the defendant Wise to testify as to the facts of the occurrence.
The plaintiffs' theories are that: there is competent evidence that the defendant Wise was guilty of ordinary negligence and wilful and wanton conduct. The testimony of many witnesses and the photographic evidence showed the skid marks of the defendant's auto and the debris resulting from the collision were located in the plaintiffs' decedents' lane of traffic. Likewise, both automobiles were located on the plaintiffs' decedents' side of the road after the collision; the alleged errors in the admission of evidence, instructions, and post-trial rulings are not well founded; there is an action for medical, hospital, and funeral bills on behalf of a decedent's estate where it has incurred such due to the defendant's negligence, regardless of whether a widow survives; there was competent evidence of loss of services and contributions by the decedents to the brothers and sisters or other collateral next of kin of both decedents; the court in directing a verdict on the defendant's counterclaim was correct because there was no evidence that the decedent Walgrave was guilty of negligence and the overwhelming evidence showed the defendant Wise guilty of negligence and wilful and wanton conduct; the defendant was not competent to testify to the facts of the occurrence; the Court was correct in not directing a verdict of not guilty as to the complaint of the plaintiff Eggimann as administrator.
These suits grew out of a collision between an automobile driven by Virgil M. Walgrave, deceased, in which Robert E. Eggimann, deceased, was riding, and an automobile being driven by the defendant Wise. Virgil M. Walgrave and Robert E. Eggimann both died as a result of injuries sustained in the collision. Each decedent was survived by collateral next of kin, i.e., brothers and sisters, or children of a deceased brother or sister. Neither was or had been married. Eggimann was 62 years old. Walgrave was 37 years old. The facts and circumstances relative to the alleged pecuniary loss by the respective next of kin of each decedent need not be here stated in view of the disposition we believe should be made of the cause. There were no eyewitnesses qualified to testify to the occurrence. The collision happened shortly after midnight on June 11, 1961 on State Route 78, a two-lane paved (asphalt-blacktop) highway, approximately five miles north of Kewanee and about five miles south of Annawan. There is a black and white center line and on each side of the road is a yellow line. The road runs generally north and south, but at a point approximately five miles north of Kewanee it jogs east for approximately one-half mile and then turns north directly towards Annawan. The collision occurred on the curve towards the north, which is wide and sweeping. The road is level as it approaches the curve. The highway was dry. Visibility (as far as could be at night) was good. At the time of the Collision Virgil Walgrave was driving a 1954 Ford coming from Kewanee and going to his home in Annawan, and the defendant Wise was driving a 1957 Ford south on Route 78 from Annawan, approaching the curve from the north. There was testimony of certain witnesses who arrived at the scene after the collision took place, who described in varying aspects the scene itself, the cars involved, the positions of the cars, the positions of Walgrave, Eggimann, and Wise, and the debris. The photographs in evidence of the scene and the cars, show, inter alia, the curve, from both directions, and (coming from the north) a 45 m.p.h. sign, a curve sign, and a "No Passing" zone sign, and the Wise car in approximately the position it was in immediately after the collision, and the Walgrave car in the position to which it had been moved by a wrecker after the collision. There was some evidence that the decedent Walgrave had had some beer about one hour before the accident. Walgrave and Eggimann lived in Annawan. Within a half hour prior to the collision Walgrave had driven one Oldeen to Kewanee, with Eggimann as a passenger also. After letting Oldeen out at Kewanee Walgrave started back to Annawan with Eggimann as a passenger in the right front seat.
Two of the witnesses, Floyd Collins and his wife, Barbara, were the first to arrive. Floyd Collins stated that the two cars were 5 to 7 feet apart and all of the parties appeared to be completely unconscious. He drove around the left or west side of the cars. The cars were not moved until the wrecker arrived.
Andy Nelson, a wrecker driver, arrived later, after the ambulance but before the State Police. He testified that the Walgrave car, a 1954 Ford, was headed north on an angle off the east (northbound) side of the road, the front was off to the east, off of the road, with the rear wheels east, or right, of the center line of the highway, just on the edge of the highway. The Wise car, a 1957 Ford, was north of the Walgrave car, headed south in the northbound lane of traffic. Both cars were on the east (northbound) side of the highway. There was a concentration of debris east of the center line of the highway.
Mack R. Miller, a State Trooper, arrived about 1:15 a.m. and found the Wise car completely in the east (northbound) lane of traffic, and he found debris consisting of glass, metal and dirt in the east lane of traffic 27 feet north of the Wise car. There were marks on the highway in the northbound lane beginning at about the center line and extending south 200 feet to the pile of debris. He saw scratches, or a gouged place, in the highway from the debris to the final resting place of the Wise car. The Wise car was in the northbound lane, its right front wheel almost to the center line, and its left rear wheel on the shoulder on the east side of the pavement. The 1954 Ford (Walgrave's car) was pointed easterly or northeasterly, the front part on the gravel off the highway, it was in the east lane. Miller later went to St. Francis Hospital in Kewanee where Wise and Walgrave were taken. The room where Wise was "reeked of alcoholic liquor." He went past the foot of Wise's bed and observed a liquor odor coming from Wise and Wise was loud and using profanity. Two other Troopers testified to much the same effect as Miller as to the scene of the accident and said the marks on the highway north of the Wise car appeared to be skid marks.
Ralph N. Cole, the Coroner of Henry County, went to the Hospital about 1:00 a.m. He was in the room with Wise, within 2 1/2 feet of him. He observed that Wise was in a stupor, mumbling, and had a very strong odor of liquor about his cot and near him. He later went to the scene of the collision. He observed the skid marks east of the center line and continuing in a southerly direction. They started at the center line, veered left, and then back toward the center line.
Dr. William B. Larson, of Annawan, arrived at the scene of the accident shortly after midnight and before the ambulance arrived. Wise was still in his car. Walgrave was hanging out the left front door of his car by his feet. Eggimann was on the right side of the front seat of that car, crumpled over. He helped remove all of them. The Walgrave car was on the east side of the road, the right front wheel partly off the road. The Wise car was on the east side of the center line, pointed south. Eggimann died after he was removed from the car. Walgrave died twelve days later.
Three witnesses testified to the safe driving habits and reputation as a safe driver of the decedent Walgrave. Two witnesses also testified to the careful driving habits of the defendant Wise. There was no testimony of that nature concerning Robert E. Eggimann, deceased, the passenger in the Walgrave car, or as to his actions while riding in the car or as to his habits other than as may be inferred from the other facts and circumstances in evidence.
Theodore Oldeen, the party whom the decedent Walgrave drove to Kewanee just prior to the return trip to Annawan during which this accident occurred, a witness for the defendant, said Walgrave drove perfectly alright and observed the speed laws on the trip to Kewanee, he drove on the right side of the road, appeared sober, and kept control of his faculties. He had met Walgrave earlier that evening in an Annawan tavern where Walgrave was playing cribbage. Walgrave had two "short" beers while there before leaving on the Kewanee trip. They went directly there.
The plaintiffs' instruction as to the forms of verdict in the Eggimann case, referred to as Plaintiff Eggimann No. 23 (IPI No 45.03 Modified), was:
This form is to be used if you find for the plaintiff Carl S. Eggimann as administrator of the estate of Robert E. Eggimann, deceased, on Counts I or II of the complaint:
We, the jury, as to Counts I and II of his complaint find in favor of the plaintiff Carl S.E.ggimann as administrator of the estate of Robert E. Eggimann, deceased, and against the defendant.
We assess the damages in the ...