Appeal from the Circuit Court of Stark County; the Hon. EDWARD
HAUGENS, Judge, presiding. Affirmed.
Rehearing denied and opinion modified February 24, 1965.
Suit was brought by the Administrator of the Estate of Judy Ann Turnbull, deceased, against the Estate of Thomas Claude Hotz, deceased, and one Earl Tracy Porter. The action arises out of an automobile collision in which plaintiff's and defendant's decedent were killed. Both were young people, Judy 14 years old and Thomas 17 years old. The collision occurred on December 9, 1960, at about 10:30 p.m. Judy was riding as a guest in an automobile Page 374c driven by Thomas and owned by his father. The evidence shows that the automobile was in good condition and being driven by Thomas, hereinafter referred to as defendant, with his father's permission, in an easterly direction, along a township road near an intersection with State Route 91. A stop sign was located at the west edge of the State Route giving preference to traffic on the State Route over traffic on the township road. The defendant, Porter, who we shall refer to as Porter, was driving a pickup truck on Route 91, in a southerly direction, approaching the aforesaid intersection, where the two vehicles collided. The complaint, as amended, sought recovery against defendant under the Guest Statute of the state and against Porter for negligence and wilful and wanton misconduct. Defendant filed an answer, denying generally all of the material allegations. On the date of the trial defendant attempted to file an additional answer in which defendant charged Porter with sole responsibility for Judy's death. Hereafter we shall refer to Judy as plaintiff. The additional answer alleged, in substance, that Porter drove his automobile in a negligent and careless manner and alleged certain acts of Porter that constituted negligence and that such negligence was the proximate cause of the accident. It further alleged that defendant was free from negligence and wilful and wanton misconduct. The trial court denied defendant's motion to file this additional answer. The case was heard by a jury, and after plaintiff's evidence, plaintiff moved to dismiss Porter from the case. Defendant resisted the motion, but the lower court allowed the same and dismissed Porter. A verdict was returned for plaintiff against defendant and judgment entered on that verdict. Defendant submitted a Special Interrogatory to the jury asking if they found defendant was guilty of wilful Page 374d and wanton misconduct, to which the jury answered "yes."
The facts show that defendant was driving his car slowly in an easterly direction along the Township Road, and drove onto the State Road. Porter was driving south on the State Route and the front of his truck struck the left side of defendant's car at about the center. Witnesses Wayne and Elizabeth Miller testified that they were about 1/8 of a mile from the intersection at the time of the collision, facing north, and that they were going to turn into the driveway of their home, situated on the west side of Route 91 and at the point where they saw the accident. It was a clear, cold night. As they approached their driveway and before turning into same, they saw a vehicle approaching down the hill, headed south. This was the Porter truck. They also saw defendant's car coming along the township road and saw it drive in front of the Porter vehicle. Mr. Miller testified he saw the impact. He stated the lights of both cars were on when he first saw the automobile coming from the west. This car was at the edge of the pavement of the State Route and coming onto the pavement. The impact was at the center of defendant's car, between the two doors. The automobile was a four door sedan. He could not estimate the speed of defendant's car, except to say it was traveling slowly. He did not see it stop, but it was at the edge of the pavement, moving onto the pavement, when he first saw it. He first realized there would be a collision when the lights of the truck disappeared as defendant's car pulled in front of it. He stated the intersection was visible to him when he saw the collision; that he observed skid marks at the scene, about 50 feet of them, and they were mostly in the southbound lane of traffic. In his opinion the impact took place west of the centerline of Route 91 and in the middle of the intersection. In testifying as to the Page 374e terrain, he said that the Township Road is higher to the west of the State Road and declines gradually as it reaches Route 91, with the high point being about 330 feet west of the intersection; that there is an embankment at the intersection, but that it does not create an obstruction to the view. He stated he felt traffic coming from the west could see traffic from the north but added that he believed it was harder to see a car coming from the north, as you approached the intersection from the west than it would be to see a car coming from the west as you approach the intersection from the north. Mrs. Miller testified that she first observed the lights of the car coming from the west, and it was traveling at a low rate of speed. It was a short distance from the intersection. She also saw the lights of the car coming from the north. She is not sure if defendant's car stopped. She knew there had been an accident when, as she stated, "the lights have disappeared."
Plaintiff administrator testified that his decedent could not drive a motor vehicle and did not have a license. There were no witnesses as to plaintiff's acts or conduct at or immediately prior to the accident. She was seen in the automobile, with defendant driving in the Village of Toulon, a short time prior to the accident. She had, along with defendant, attended a basketball game.
The evidence also shows that Porter was driving his father's pickup truck. At the time of the accident there were four persons seated in the front seat. One of the passengers testified the truck was traveling at 30 to 40 miles per hour and Porter stated he was traveling from 40 to 45 miles per hour at the time of the collision. Defendant's automobile was not seen until it appeared in front of Porter's truck. Porter stated that defendant's automobile suddenly appeared in front of him "like he was knocked out in front of me." Page 374f The testimony of Porter and others in his truck was that Porter was in his own lane of traffic. There is evidence that Porter had been drinking. In fact, he plead guilty to a charge of driving while under the influence and reckless driving and served a year at Vandalia.
The court permitted testimony of the careful habits of plaintiff but refused to permit such testimony on behalf of the defendant. There is no dispute that defendant was the driver of the automobile and plaintiff his guest passenger.
Counsel for defendant contend the court erred in denying leave to file the additional answer, relying on Section 46 of the Practice Act and Davidson v. Olivia, 18 Ill. App.2d 149, 151 N.E.2d 345. Counsel do not, however, show how defendant was prejudiced by the court's action. Section 46 of the Practice Act specifically provides that the parties may amend the pleadings before final judgment. The granting of leave to so amend is, however, directed to the sound discretion of the court. Davidson v. Olivia, supra. We do not believe under these facts that the court abused its discretion nor that defendant was prejudiced by the ruling. The additional answer did not constitute a counterclaim and would not have permitted defendant to introduce evidence he was not at liberty to introduce under his answer. Nor would defendant's right to keep Porter in the case nor his right to call Porter as an adverse or hostile witness have improved. The additional answer was superfluous and defendant was not prejudiced nor has he been able to show where he was prejudiced by the lower court's ruling.
Counsel for defendant next contend the court erred in dismissing Porter from the case over defendant's objection. The record discloses that at the end of plaintiff's testimony, plaintiff administrator moved to dismiss Porter from the case. Porter joined in the motion, Page 374g arguing for such dismissal, although he did not move for dismissal or directed verdict. Counsel for defendant point to testimony from which they claim a jury might reasonably conclude that Porter was guilty of negligence or wilful and wanton misconduct, and argue that by Porter's dismissal they were denied the right to prove Porter was solely responsible for the accident. This is not borne out by the record. Counsel for defendant introduced testimony of Porter's conviction for driving while under the influence and evidence that Porter had been drinking prior to the accident. Porter need not have been a party to the suit in order for defendant to place blame for the occurrence upon him. The plaintiff was not required to sue Porter and having done so he need not persist in this suit. Whatever the motive in dismissing Porter, plaintiff had, under proper circumstances the right to do so. Counsel for defendant cite Cascio v. Bishop Sewer & Water Co., 2 Ill. App.2d 378, 119 N.E.2d 531, and Thillman v. Early, 340 Ill. App. 538, 92 N.E.2d 346. Neither case is of help to the defendant. This argument is based primarily on the proposition that Porter's removal left the jury no alternative but to find against the defendant. The argument has no merit. While Porter's removal prevented a verdict being entered against him it did not have the effect of directing a verdict against the defendant for to so hold would be to prevent a court from dismissing a defendant from a lawsuit by directing a verdict. Such a finding would compel a plaintiff to sue everyone involved in an accident despite plaintiff's beliefs as to the responsibility of the parties and would prevent settlement in cases involving multiple defendants, except on joint agreement.
Plaintiff did not call Porter as a witness, nor has defendant shown what plaintiff did that can be classified as taking unfair advantage of defendant. Page 374h Plaintiff was not required to call Porter as a witness although counsel for defendant infer in their argument that he had some obligation in this regard. The passengers in Porter's truck were called and counsel for defendant cross-examined each of them. Porter's counsel had the duty to his client to establish his freedom from negligence and remove the responsibility of the collision from Porter. The record fails to show that Porter's and plaintiff's counsel acted improperly. Underlying motives, if not manifested in prejudicial acts, are no basis for reversal. Counsel for defendant complain that Porter was solely responsible for the accident. If this is true they could certainly have filed a cross complaint and protected themselves from Porter's dismissal and possibly against a directed verdict. Counsel's motive in not so doing may well be the same motive attributed to plaintiff. This court is compelled, therefore, to say that unless prejudice is established, unless a procedural advantage is taken of a co-defendant as illustrated in Cascio v. Bishop Sewer & Water Co., supra, and Thillman v. Early, supra, the court cannot and should not find dismissal to be error.
Section 52 of the Practice Act provides:
"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal which shall be supported by affidavit or other proof. . . ."
It should be noted that plaintiff's motion was not to dismiss Porter without prejudice. The court is Page 374i of the opinion that Section 52, while intended to protect the parties, does not prevent dismissal of a defendant on motion of the plaintiff and agreement by the defendant sought to be dismissed unless the remaining defendants can establish they were prejudiced by such action. Defendant cites 16 ILP 209, Section 13. That authority holds that the court has a duty to give effect to an agreement of the parties to dismiss an action. Schmalzl v. Derby Foods Inc., 341 Ill. App. 390, 94 N.E.2d 86, Feiertag v. Reichmann, 21 Ill. App.2d 215, 157 N.E.2d 818, Miller v. Miller, 332 Ill. 177, 163 N.E. 343. In Schmalzl v. Derby Foods Inc., supra, the court held that it was error not to grant a similar motion and stated where the dismissal is agreed to by the plaintiff and the defendant seeking dismissal Section 52 of the Practice Act does not apply. The record failing to disclose any advantage being taken of defendant by the dismissal, we feel that the lower court did not err in this regard.
Counsel for defendant further allege error in the court's refusal to allow defendant to call Porter as an adverse or hostile witness. They fail, however, to argue the point in their brief. They do not show what they hoped to prove by permitting this right, nor do they cite law to substantiate this point. The record fails to disclose that the court abused its ...