Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gertz v. Bass

MAY 10, 1965.

ELMER GERTZ, ADMINISTRATOR OF THE ESTATE OF CERETTA GERTZ, DECEASED, AND ELMER GERTZ, PLAINTIFFS-APPELLANTS,

v.

VELLA BASS, MILTON BASS AND MIKE BASS, INDIVIDUALLY AND AS CO-PARTNERS, D/B/A C.F. CO., A COPARTNERSHIP, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Judgment reversed and cause remanded with directions.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This suit was brought by Elmer Gertz, in his capacity as administrator of his deceased wife's estate and also in his own behalf, to recover damages in a survivorship action for the personal injuries suffered by the decedent and, alternatively, for her wrongful death. Gertz brings this appeal from a judgment entered on a verdict for the defendants.

Because of the manner in which we dispose of this case, it is only necessary to briefly summarize the evidence. On the morning of February 25, 1956, one of the defendants, Vella Bass, drove to the decedent's home which was located a few miles from where she lived. She picked up the decedent there in order to drive her to the Community Child Guidance Center at the DeHaven School in Evanston, Illinois, where the defendant and decedent were to participate in a session in child guidance work. The defendant, Vella Bass, customarily picked up the decedent each Saturday to take her to the school for this work. On the day in question, as the women were proceeding north on McCormick Boulevard, they passed under a viaduct located between Howard and Oakton Streets. The automobile went into a skid; the defendant lost control of the car and the automobile struck a railroad embankment. As a result of the accident, the decedent suffered severe and permanent injuries and on April 14, 1958, she died.

From the pleadings it appears that the plaintiffs' theory was that at the time of the occurrence the decedent was a passenger and not a guest in the automobile being driven by the defendant, Vella Bass; that Vella Bass was negligent in the operation of the automobile; and that the decedent was in the exercise of ordinary care for her own safety. *fn1 It further appears that the defendants' theory was that the decedent was a guest and not a passenger in the automobile and hence that they can be liable only if the conduct of Vella Bass in driving the car was willful and wanton.

In answering the special interrogatories which were submitted to them, the jury found that the defendants' automobile was operated negligently immediately before and at the time of the occurrence; that the defendant, Vella Bass, was not operating the automobile in a willful and wanton manner at or before the time of the occurrence; and that the decedent was a guest and not a passenger in the automobile at the time of the occurrence. After the jury returned their sealed verdict for the defendant and after judgment was entered thereon, the trial court learned that, without his knowledge and without the knowledge of either counsel, the court's bailiff had complied with the jury's request during their deliberations and had given the jury a copy of the Webster's New Collegiate Dictionary, which was published by G. & C. Merriam Co., Springfield, Massachusetts, 1960 edition.

The plaintiffs appeal from the judgment and verdict on the following grounds: that the answers of the jury to the interrogatories were contrary to the manifest weight of the evidence and that it was prejudicial error to send a dictionary to the jury room at the request of the jury.

We have concluded that the trial court should have granted a new trial as requested in the plaintiffs' post-trial motion. We believe that it was prejudicial error for an officer of the court to give to the jury a dictionary which was not admitted into evidence, because the dictionary contained definitions of terms which were essential to a decision in the case, and which were substantially different from the technical legal definitions of those terms which the jury was properly instructed to apply in arriving at their verdict.

It is well settled, and the defendants do not deny, that it is error to permit the jury to take with them into the jury room, during deliberations, matter which was not admitted into evidence. Crawford v. Brown, 321 Ill. 305, 151 N.E. 911; Trohey v. Chicago City Railway Co., 168 Ill. App. 1. However, it is also clear that not all errors committed at trial constitute grounds for reversal. Only those errors which are prejudicial to the rights of the complaining party are reversible. People v. Storer, 329 Ill. 536, 161 N.E. 76; Shafer v. Northside Inn, Inc., 44 Ill. App.2d 86, 194 N.E.2d 5.

Therefore, the question presented here is whether or not the error committed in sending the dictionary to the jury room was prejudicial to the plaintiffs so as to constitute grounds for reversing the verdict and judgment. We believe that it was. Under the pleadings, the following words were crucial to a decision in this case: "guest," "passenger," "willful," and "wanton." An examination of the definitions of these words which are contained in the dictionary, which was given to the jury, clearly shows that if such definitions were consulted by the jury they would confuse the jury and would be highly prejudicial to the plaintiffs.

The jury was properly instructed as to the meaning of "guest" in the following instruction:

If you find . . . that Ceretta Gertz was riding . . . at the invitation of the defendant . . . only to confer some benefit incident to hospitality, companionship . . . and that the carriage did not tend to promote the mutual interests of both Ceretta Gertz and the defendant, and . . . was not primarily for the attainment of some objective or purpose of the driver, then Ceretta Gertz was a guest. . . .

By contrast, the dictionary in question defines "guest" as a "visitor entertained without pay." If this part of the definition was accepted by the jury, then they would conclude that the decedent was a guest because the evidence is undisputed that the decedent did not pay the defendants for the ride. Another definition of "guest" in the same dictionary would confuse the jury because it defines the word as meaning one who lodges or boards in a hotel "for pay." Finally, both definitions are inconsistent with the instruction because nothing is mentioned in the instruction about payment.

The jury was also properly instructed as to the meaning of "passenger" in the following instruction:

If you find . . . that . . . the carriage of Ceretta Gertz . . . tended to promote the mutual interests of both Ceretta Gertz and the defendant, or . . . was primarily for the attainment of some objective or purpose of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.