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Mcelroy v. Force

OCTOBER 13, 1966.

LARRY MCELROY, PLAINTIFF-APPELLEE,

v.

DOVIE FORCE, ADM. OF THE ESTATE OF HAROLD DUANE ROBISON, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding. Judgment adverse to defendant affirmed.

EBERSPACHER, J.

Rehearing denied November 9, 1966.

Defendant administratrix appeals from a judgment for $21,000 entered against her after a trial by jury. This personal injury lawsuit arises from a one-car accident involving an automobile occupied by plaintiff and the defendant's son, who was killed.

Defendant has raised five points in her brief and we will consider them in the order raised.

The first contention is that there is insufficient evidence to support a finding that decedent Robison was driving his car at the time of the accident. The evidence shows that both McElroy and Robison owned cars which were available. They took Robison's car when they started out and Robison was driving at that time. They made a stop and after that Robison continued driving. There was no direct evidence as to who was driving after a second stop. The jury also had before them the evidence concerning the path of the car, the objects struck, the damage to the car and the final location of the car and the plaintiff and decedent after the crash, as well as the nature of plaintiff's injuries. Here there is proof, which, taken with its intendments most favorable to the plaintiff, supported by a fact from which a reasonable inference of the owner's being in control, would sustain the essential allegations that defendant's decedent drove.

The second contention is that the giving of Plaintiff's Instruction #14 was reversible error. This instruction reads: "The Court instructs the jury that if you find from the preponderance of the evidence that at the time of the incident in question, Harold Duane Robison, deceased, was the owner of the Chevrolet automobile involved in the collision in question, then the presumption is that he was operating same at the time of the collision in question." The general proposition that, in the absence of any evidence to the contrary, ownership gives rise to a presumption that the owner was in control of the vehicle is correct. Robinson v. Workman, 9 Ill.2d 420, 137 N.E.2d 804; Anderson v. Launer, 13 Ill. App.2d 530, 142 N.E.2d 838. But neither of these cases hold that proof of ownership creates a "presumption" of law as to who was driving a car about which the jury should be instructed. When the word "presumption" was used in those two cases, it clearly meant at the most, according to the issue confronted and the language employed, that proof of ownership makes out a "prima facie" case sufficient to support the verdict and that the burden of going forward with the evidence had shifted to the defendant. *fn1 In both the Anderson and Robinson cases there was substantial evidence, which, without the fact of ownership, would have supported the jury verdict. The fact that the presumption makes out a prima facie case upon which the plaintiff is entitled to recover, unless such prima facie case is overcome by testimony to the contrary, makes it incumbent upon the defendant to offer proof in opposition in the plaintiff's case. McCarty v. O.H. Yates & Co., Inc., supra. The presumption does not have the effect of shifting the burden of proof to the defendant to prove by a preponderance of the evidence that another person was driving, but only places upon him the burden of presenting or going forward with the evidence.

We find no case where such an instruction has been given, and it is not in IPI. We note also that the instruction uses the word "presumption," without definition, or explanation of its meaning, and that it fails to state that the "presumption" is rebuttable. An instruction in the approximate format of IPI 50.07 and IPI 50.08 would have fairly presented the issue to the jury, instructing them that they might infer from the fact of defendant's ownership of the automobile that he was driving at the time of the occurrence, unless the inference was overcome by other believable evidence. If there is substantial evidence to the contrary, the presumption of the owner being in control, becomes the basis of an inference from which, with the circumstantial evidence, the jury could still determine that decedent was the driver. See 9 Wigmore, Evidence § 2491 et seq. It has been held that where the record contains countervailing evidence and conflicting presumptions, the presumption embraced in the instruction should not have been the subject of an instruction because the fact of decedent's ownership became, at the most, a fact from which the jury could infer that decedent was in control. See Brill v. Davajan, 51 Ill. App.2d 445, 201 N.E.2d 253, 255; Miller v. Pettengill, 392 Ill. 117, 123, 63 N.E.2d 735. Rule 704, Model Code of Evidence and the comment on paragraph (2); 9 Wigmore, Evidence § 2493.

Despite the fact that the presumption is not conclusive, and can be rebutted, we do not consider it to be rebutted by a mere countervailing presumption. Here appellant has argued that since there is evidence in the record that decedent was sleepy when at the last stop before the accident, that the presumption of self-preservation comes into the case, to create the inference that for his own safety and that of plaintiff, he would not have driven his vehicle, but would have consented to plaintiff's driving, and that plaintiff's desire for self-preservation would have caused him to drive. Appellant further contends that evidence of the condition of the car, its final resting place, and the location of the plaintiff and the decedent immediately after the accident upon or along the highway, are circumstances which indicate that plaintiff was the driver. In our opinion these circumstances are inconclusive, and a resort to them to determine which of the two was driving is highly speculative. It has been said that the presumption of the owner driving can only be overcome by clear and convincing evidence to the contrary. Blashfield, Cyclopedia of Automobile Law and Practice, Vol 9B, § 6066, citing cases from jurisdiction other than Illinois. In the Minnesota case of Sprader v. Mueller, 265 Minn. 111, 121 N.W.2d 176, the trial court charged the jury that as a matter of law they must find Mueller, the owner of the car, was the driver of his vehicle when the collision occurred. Mueller, the owner, could not recall who was driving subsequent to getting gas, and there was testimony that he had admitted driving at the time of the collision. Both occupants were thrown from the car, and the only evidence was that they were found immediately after the accident, on the pavement in front of the Mueller car. Mueller testified that a shoe found near the left front door of his car was not his. On previous occasions Mueller had permitted the decedent Berg to drive the car.

On appeal, Mueller contended that this was a jury question. While the case was remanded on other grounds, as to this point, the Supreme Court of Minnesota said:

"In this state of the record we hold that it was not error for the trial court to hold that Mueller was the driver as a matter of law.

"We adopt the rule supported by the great weight of authority that where the owner is an occupant of his own vehicle at the time of an accident, it is prima facie evidence that he was the driver. (Citing cases.) Such circumstances create a rebuttable presumption that the owner was in control, and he has the burden of overcoming that presumption. In the absence of direct evidence because of death or amnesia, and where, as here, the circumstantial evidence is wholly inconclusive, it is the duty of the court to hold that the owner was the driver when the accident occurred."

In view of the lack of substantial evidence that plaintiff was driving the car in question, we do not consider the giving of Plaintiff's Instruction 14, reversible error.

Next, defendant objects to Plaintiff's Instruction #9. Instruction #9 is IPI 20.01. The objection is to the form of denial. The instruction states: "Defendant denies that her intestate, Harold Duane Robison, was guilty of wanton and willful misconduct in doing the things claimed by plaintiff, and denies that the plaintiff was free of wanton or willful misconduct on his part." Defendant contends this denial implies that Robison was driving. While the wording of the denial did not specifically advise the jury that defendant denied decedent was driving, it was as specific as the pleadings on this point. The notes on the use of this instruction in IPI state that the instruction, if tendered, must be modified to fit the allegations of the complaint and answer. The bracketed materials suggested in IPI 20.01 do not include a specific denial of decedent's driving, and while the notes suggest innovation in the use of the instruction, the suggestion is that such additional innovations "consistent with the pleadings" should be used whenever required. The complaint alleged that plaintiff was a guest passenger in a vehicle operated by decedent and that decedent "willfully and wantonly drove" the motor vehicle; the answer simply denied each and every allegation of the complaint. An examination of the record indicates that the jury was fully advised through the opening statements and final arguments that there was a dispute as to whether plaintiff or decedent was the driver; defendant arguing that the evidence of the location of decedent's body and the location of plaintiff, both of whom were thrown from the car, and the fact that the right front door was closed while the left front door was open, supported his position that plaintiff was driving, while plaintiff argued that this evidence, with other evidence, supported the contention that decedent was driving. Plaintiff tendered himself as a witness, but was not allowed to testify due to defendant's objection, and there being no eyewitnesses as to which of the two was driving after the second stop, the record contains only circumstantial evidence and the presumption as to who was driving at the time of the accident. While the instruction is lacking in positiveness as to the contentions of the parties with reference to who was driving, in view of the pleadings, the giving of this instruction was not reversible error.

Defendant next contends that the trial court committed reversible error in refusing to admit careful habit evidence about defendant's intestate while accepting it for the plaintiff. It has long been the rule that in death cases where there are no eyewitnesses evidence of careful habits of the deceased is admissible as a circumstance tending to prove due care. Casey v. Chicago Rys. Co., 269 Ill. 386, 109 N.E. 984. Admitting evidence of careful habits in death cases is a concession to the difficulty of proving due care by other means in the absence of eyewitnesses, Petro v. Hines, 299 Ill. 236, 132 N.E. 462. The language in Campbell v. Ragel, 7 Ill. App.2d 301, 129 N.E.2d 451, indicates that this rule should extend to cases where, instead of death, plaintiff suffered amnesia and hence ...


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