Appeal from the Superior Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
This is a personal injury action by an occupant of a car, which collided with a truck, and both drivers were killed. The separate actions of plaintiff and of the administrator of the estate of the truck driver, against the administrator of the estate of the deceased driver of the car, were consolidated for trial. Verdicts were returned for the defendant in both actions. A new trial was allowed in the truck driver's case and denied in the occupant's case. The court found there was no just reason for delaying appeal in the occupant's case.
The principal question is whether the court was correct in holding that the occupant, plaintiff Donald McNanna, a minor, was "a guest passenger under the evidence and the law in this case."
Plaintiff McNanna contends that he was not a guest in the automobile at the time of the occurrence within the purview of the Illinois Guest Act; therefore, the court erred in striking Count III of the amended complaint, which charged the defendant's decedent with ordinary negligence or lack of due care in driving the automobile as opposed to wilful and wanton misconduct. Plaintiff also contends that the court erred in giving an instruction regarding the Guest Statute, which omitted the words "without payment for such ride," as provided in the statute.
The evidence as to the occurrence came solely from the testimony of three other occupants of the car. On October 17, 1956, plaintiff and five other students of the Joliet Catholic High School were headed for home, riding in an automobile being driven by Charles Gach, now deceased, also a student at the same school. They were driving in an easterly direction on 147th Street, a two-lane road, 18 feet wide. The pavement was dry, visibility was good, and at the point in question the speed limit was "reasonable and proper," as there was no statutory speed limit.
As the Gach car reached the "crest of the hill," the occupants saw a slowly moving truck ahead in the eastbound lane. At this point, Charles was driving between 50 and 60 miles per hour. The truck was then 150 to 350 feet ahead. Charles then pulled out into the westbound lane to pass. He was at this time from 30 to 60 feet behind the truck, and his speed was then 45 to 50 miles per hour. The truck was then moving forward slowly. One witness estimated its speed at 15 or 20 miles per hour. No turn signals were ever given by the truck driver. Charles' car had just begun pulling abreast of the truck, being "almost next to the truck," "almost parallel with the truck," with the "front of the car . . . even with his tailgate." Suddenly the truck "seemed to come over in our lane," "he turned into us," "made a left-hand turn, which would be north into our path." The collision followed, with the right front of the fender of the Gach car coming in contact with the left fender of the truck. The point of impact was halfway in the north, westbound lane, either at "Long Avenue" or 10 to 15 feet before "Long Avenue."
As to the status of the occupants of the car, John Hartmann testified that he and the other boys in the car had arrangements with the driver "as far as reimbursing him for expenses of the automobile, and coming back and forth from school." It was $2 a week, and he had been riding with Charles Gach since September, the beginning of the school year. The $2 per week was for gas and expenses, and it was less than he would pay on the train. John Skelly testified that he and the other boys had ridden with the decedent, Charles Gach, for maybe two or three months, five days a week. Kenneth Evans testified that all of the boys had arrangements with the driver for payment of expenses in riding back and forth to school.
At the close of plaintiff's case, the trial court sustained defendant's motion to strike Count III, the negligence count, and remarked:
"I'll sustain the motion. The mere fact that some boys said they contributed $2.00 a week towards the gas and oil and expenses of driving to and from school with the driver, Charles Gach, is not in my opinion the kind of complaint that makes them a passenger for hire.
"It's a contribution for the expense of transportation that would be much less then he would pay for ordinary expenses, or ordinary transportation, and I consider it a mere contribution of no significance.
"I do not think he's a passenger for hire, and the question of ordinary negligence will also be stricken, because it follows that if he's not a passenger for hire, he's a guest passenger, and I hold that he's a guest passenger under the evidence and the law in this case."
Both parties cite cases from Illinois and other jurisdictions interpreting the language of the so-called "Guest Statute," which was in force at the time of the occurrence (Ill Rev Stats 1955, c 95 1/2, § 58a):
"Injury to guest.] § 42-1. No person riding in a motor vehicle as a guest, without payment for such ride, nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle or its owner or his employee or agent for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.
"Nothing contained in this section shall be construed to relieve a motor vehicle carrier of passengers for hire of responsibility for injury or ...