APPEAL from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County;
the Hon. THOMAS J. MORAN, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
These are appeals from the judgment of the Appellate Court, Second District, which, in a suit for personal injuries (1) affirmed the orders of the circuit court of Lake County denying defendants' post-trial motions for judgment notwithstanding the verdict, (2) reversed the trial court's order granting defendants a new trial, and (3) remanded the cause with directions to reinstate the jury verdict awarding $85,000 in damages to the plaintiff. Both defendants challenge the appellate court's ruling concerning the motion for new trial, the affirmance of the trial court's denial of defendants' post-trial motions, and the appellate court's ruling concerning a witness who testified at the trial under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1963, chap. 110, par. 60). Defendant Margaret V. Klatt, administratrix of the estate of Herman B. Klatt, deceased, also appeals from the appellate court's denial of her defense under the Statute of Limitations to a third-party complaint filed against her by defendant Commonwealth Edison.
Important questions being presented, we granted both defendants' petitions for leave to appeal.
For convenience, we set forth the appellate court's substantially correct and detailed history of the litigation and summary of the testimony adduced at the trial (55 Ill. App.2d 120):
"On August 23, 1961, plaintiff Bonnie Klatt commenced an action against Commonwealth Edison Company, a corporation, hereinafter referred to as `defendant Edison', and Margaret V. Klatt, administrator of the estate of Herbert B. Klatt, deceased, hereinafter referred to as `defendant administator', to recover damages for personal injuries received in an automobile collision. In her complaint she alleged that at the time of the collision she was a guest passenger in an automobile being driven by Herbert B. Klatt, deceased, her father, who at the time was an agent or servant of defendant Edison. Separate answers were filed by each defendant. The answer of defendant Edison denied that the deceased was its agent at the time of the collision and denied that he was operating the automobile within the course of his employment. In addition defendant Edison filed a third party complaint alleging in substance that the liability, if any, of defendant Edison was predicated upon the doctrine of respondeat superior so that if defendant Edison is liable to plaintiff the defendant administrator is liable to defendant Edison. Issues being joined on these pleadings, the cause was submitted to a jury. The jury returned a verdict in favor of plaintiff and against both defendants and fixed the damages at $85,000. Thereupon the jury also rendered a verdict on the third party complaint as follows:
`If you find in favor of the defendant, Commonwealth Edison Company, on the complaint of the plaintiff, Bonnie Klatt, you will have no occasion to use this form of verdict; if you find against the defendant, Commonwealth Edison Company on the complaint of the plaintiff, Bonnie Klatt, the Court directs that you will then return the following verdict inserting in the blank space provided the same amount that you have found against Commonwealth Edison Company in favor of Bonnie Klatt if you have so found.'
`We the jury find in favor of the third party plaintiff, Commonwealth Edison Company, and against the third party defendant, Margaret V. Klatt, administrator of the estate of Herbert B. Klatt, deceased, and assess the damages of the third party plaintiff, Commonwealth Edison Company, in the amount of $85,000.00.'
Judgment was entered upon both of these verdicts. Separate post-trial motions were filed by each defendant for a judgment notwithstanding the verdict and for a new trial. The trial court heard arguments on the motions and filed a rather extensive opinion covering the major points raised by the defendants on their post trial motions. The trial court denied both post-trial motions for judgment notwithstanding the verdict but granted both motions for a new trial. The sole ground upon which the motions for new trial were granted, as shown by the court's opinion, was that the trial judge was of the opinion that he had committed error with respect to testimony of one of the witnesses. Upon petition to this court we granted leave to appeal from the order granting a new trial. Thereupon defendant Edison filed a cross appeal appealing from the order granting a new trial on its third party complaint and also appealing from the order denying its motion for judgment notwithstanding the verdict. Defendant administrator also filed a cross appeal, appealing from the order denying its motion for judgment notwithstanding the verdict.
"The issues presented to this court for decision require a rather extensive analysis of the facts in this case. The record in the case discloses that Herbert B. Klatt was employed by defendant Edison as a division field agent working out of the Dixon office with 40 years of service. The territory handled by the Dixon office covers Stephenson County, of which Freeport is the county seat, but does not cover Winnebago County, of which Rockford is the county seat. The work of Herbert B. Klatt consists of traveling about obtaining right of ways [sic], getting permission to trim trees and kindred matters. He was furnished with an automobile by defendant Edison to be used in the performance of his duties. He was pretty much his own boss as to what he did and was given considerable leeway in the manner of performing a particular job. His normal working day ended at 5:00 p.m. and if he was out in the field during the day and finished his work prior to 5:00 p.m. he was expected to return to the office until that time. On the day of the occurrence which was August 26, 1959, Klatt checked out of the Dixon office at about 9:00 a.m. to go to Freeport. On this day defendant Edison had two engineering projects going on in the Freeport area. One was a road improvement project east of Freeport on Route 20 and another was northeast of Freeport near the town of Dakota, all in Stephenson County. The main traveled highway from Dixon to Freeport is a north and south highway known as Illinois 26 and the distance is about 37 miles. Rockford is east of Freeport and the two cities are connected by U.S. Route 20. This distance is about 28 miles. There is also a highway extending southwest along the Rock River from Rockford to Dixon known as Route 2 and it was on this highway that the collision in question took place. The distance from Rockford to Dixon is approximately 41 miles on Route 2.
"On the day in question the plaintiff was a student in nurses training at the Rockford Memorial Hospital in Rockford. During the week she stayed in the nurses residence and on days off or vacations she resided with her parents in Dixon. At about 2:15 p.m. Herbert B. Klatt called for his daughter at the dormitory to take her home for a visit. By prearrangement he had agreed to pick her up if he had business in that area. Leaving Rockford they took Route 2 toward Dixon. The collision occurred at about 3:00 p.m. between the city of Oregon and the city of Dixon about two and a half to three miles north of Dixon.
"The physical conditions existing at the time of the occurrence are important. The collision occurred on a long sweeping curve. As one proceeds South on Route 2 and enters the curve, the curve is from 1500 to 1600 feet long and to a person operating an automobile in a southerly direction the curve curves to the driver's right. The highway around the curve is banked so that the east side of the highway is approximately 1 foot higher than the west side. Along the west side of the curve there had been constructed a gutter which was about 3 feet wide and 6 inches deep and extended all the way around the curve. From the west edge of the highway there was a section of gravel, then a grassy section which sloped into a drainage ditch. The weather conditions were very bad at the time of the occurrence. It was raining very hard, visibility was very poor and cars were using their headlights. Water was flowing on the highway around the curve from east to west and the gutter was filled with water. The car in which plaintiff was driving entered the curve at a speed of from 50 to 55 miles per hour and after it had entered the curve it suddenly partially left the highway so that the two right wheels were off the paved portion of the highway. The car continued in this position for a distance of approximately 1,000 feet without diminishing its speed, and was bouncing up and down quite a bit. Suddenly the car came across the highway to the east side in a diagonal course where it was struck broadside by an oncoming car proceeding north on Route 2. Behind the car which struck the car in which plaintiff was riding was another car being operated by a gentleman known as James Rice, who testified for plaintiff and whose car was also struck as an aftermath of the initial collision. As a result of this collision the plaintiff was very seriously injured and her father subsequently died from the injuries which he received. The plaintiff could not remember anything which occurred after she and her father left Oregon."
Defendants both contend that, as a matter of law, there is insufficient evidence in the record to establish wilful and wanton misconduct on the part of Herbert B. Klatt and that plaintiff has not introduced evidence establishing her freedom from contributory wilful and wanton misconduct.
It has been previously observed that "wilful and wanton misconduct has been defined in myriads of cases, each one reiterating or embellishing the phraseology of its predecessors. (Streeter v. Humrichouse, 357 Ill. 234; Bartolucci v. Falleti, 382 Ill. 168; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569; Mower v. Williams, 402 Ill. 486; Myers v. Krajefska, 8 Ill.2d 322, 328.) One ofted [sic] quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, at p. 583: `A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.' In the recent case of Myers v. Krajefska, 8 Ill.2d 322, this court refused to overrule that definition. The court noted that although there are some variations in the phraseology of the definitions of wilful and wanton misconduct in the cases, the basic concept as applied in the case law is the same, and since such conduct is usually a matter of degree, no hard-and-thin-line definition could be made." Hering v. Hilton, 12 Ill.2d 559, 562.
Here, considering the evidence in a light most favorable to the plaintiff, which, of course, must be done (Schneiderman v. Interstate Transit Lines, Inc. 394 Ill. 569, 581), we find that Klatt, while driving around a long curve on a very rainy day of limited visibility, upon going off the pavement drove approximately 1000 feet at 50-55 miles per hour without reducing his speed and then swerved back onto the pavement and into the oncoming traffic. We believe that reasonable men might properly denominate these actions as indicating wilful and wanton misconduct under the above quoted definition. The question accordingly was properly one for the jury and thus no error has been committed with regard thereto. (Hering v. Hilton, 12 Ill.2d 559; Amenda v. Suits, 8 Ill.2d 598; Myers v. Krajefski, 8 Ill.2d 322. Defendants cite Clarke v. Storchak, 384 Ill. 564, for the proposition that there has been no indication of wilful and wanton misconduct on the part of Klatt and that there should have have been a directed verdict for defendants. However, the evidence here most favorable to plaintiff, as set forth earlier, indicates that Klatt drove along the shoulder of the curve during a rainy day for approximately 1000 feet without reducing his speed, and in attempting to re-enter the highway swerved into the oncoming traffic. These circumstances conspicuously distinguish the instant cause from Storchak, where for some uncertain reason defendant lost and did not regain control of the operation of his vehicle up to the time of the accident.
Since plaintiff testified that she could not recall any circumstances concerning the accident, there is no direct testimony as to her freedom from contributory wilful and wanton misconduct, nor was there any evidence introduced concerning habits of due care on the part of the plaintiff. However, the plaintiff did testify that she was riding in the right front seat of the Klatt automobile prior to the accident and before going through Oregon, and that her father was then driving properly, and witness James Rice stated that he observed her in the right front seat at the time the accident occurred. Under these circumstances, we believe it was for the jury to determine whether plaintiff was free from contributory wilful and wanton misconduct, as "evidence of due care need not be established by direct and positive testimony, but may be inferred from all the facts and circumstances shown to exist prior to and at the time of the collision. [Citing cases]." Pennington v. McLean, 16 Ill.2d 577, 582. See also Ruspantini v. Steffek, 414 Ill. 70.
The next question with which we are concerned is the propriety of the appellate court's reversal of the trial court's order granting defendants a new trial.
The only testimony at the trial which tends to indicate wilful and wanton misconduct on the part of Herman B. Klatt is that of witness James Rice, who testified that as he was driving his automobile in a northerly direction on Route 2 on August 26, 1959, behind the car of Charles Hasson, he observed the Klatt automobile coming from the opposite direction and going off the road to its right. With two wheels off the pavement, the witness stated, the Klatt car, at an estimated speed of 50-55 miles per hour, traveled approximately 1000 feet "bounding quite a bit," without reducing its speed. It then abruptly swerved back onto the pavement, into the opposing lane of traffic, and collided with the automobile of Hasson.
In order to controvert this testimony, defendant Edison called John Groenwald, an employee of Commonwealth. He testified that as he was driving his company truck on Route 2 toward Dixon, he came upon the accident in question. Other testimony in the record, coupled with that of his own, establishes that he came upon the scene shortly after the accident occurred. When questioned concerning the existence of tire marks on the shoulder of the pavement where the Klatt car allegedly had left the pavement, the following transpired:
"Q. Did you examine the shoulder on the low side of the curve after you arrived there?
Q. State whether or not you saw any tracks on the shoulder on the low side of the curve.
Mr. Burrell: (Attorney for plaintiff) I object to that.
The Court: The objection is going to be sustained."
On cross-examination by counsel for defendant administrator, the following testimony was elicited:
"Q. And did you examine the territory around the accident?
A. I did. I walked around the cars to see where it had been hit. I also looked at the shoulder on the other side of the road to see why he got in that position.
Q. You say the shoulder on the other side of the road. Do you mean the other side of the road from where the automobiles were?
A. Yes, from where I found the cars.
Q. That is the low side of the highway, the inside of the curve?
A. The inside of the curve.
Q. And did you look back toward Oregon or back to the south from where ...