Appeal from the Circuit Court of McLean County; the Hon. FRANK
J. GOLLINGS, Judge, presiding. Reversed.
Defendant appeals a judgment entered in favor of plaintiff upon the verdict of a jury in the sum of $12,000.
Count I of the complaint, for personal injuries, in its relevant allegation sets forth that plaintiff was the owner of a certain automobile sedan which was being driven by the defendant along a described rural road, and that, at the time and place described, plaintiff was a "passenger" and not a "guest" within the meaning of § 9-201, chapter 95 1/2 (Ill Rev Stats, 1965). It is further alleged that the defendant negligently drove the automobile in several specified ways, that the plaintiff was in the exercise of ordinary care and caution for her own safety and safety of her property, and that, as a direct and proximate result of defendant's negligence, she suffered personal injuries and the loss of her automobile.
Count II of the complaint alleging wilful and wanton ligence on the part of the defendant was dismissed prior to trial.
The trial court denied defendant's motions to dismiss Count I directed to the propositions that the owner-occupant of an automobile has no right of action against the driver thereof for negligence, and also that the Count failed to allege that the plaintiff had contracted away and abandoned her right to control of the automobile.
Defendant's answer affirmatively set forth the same matters as that stated in the motion to dismiss.
The trial court denied defendant's motion for summary judgment which set forth the facts regarding the relation of the owner and the driver, and urged as grounds for said motion that the only duty imposed upon the defendant was to refrain from wilful and wanton misconduct, and the further ground that the conduct of the defendant, if negligent, was properly imputed to bar plaintiff's recovery.
At the conclusion of the trial upon plaintiff's motion, the affirmative defenses were stricken. Defendant's post-trial motions were denied. As abstracted, the trial court's reasons for his ruling included the conclusion that the owner of a vehicle riding in the same is a passenger and not a guest, therefore, negligence would apply and not wilful and wanton.
Facts relevant to the issue framed include the following: The plaintiff and the defendant had been acquainted for approximately three months prior to November 14, 1962, the date of the injury. They were contemplating engagement, and at the time of the trial had been married. The plaintiff was the owner of a 1956 Chevrolet. On the date of the collision she drove in the evening with her young nephew to purchase a book for him at a drugstore. Leaving there, she drove to the hotel where defendant resided and with her nephew went to the defendant's room, where she asked defendant to accompany her in taking the nephew for a ride. It appears that there was no discussion between plaintiff and defendant as to whether they would use his car nearby or hers, or who would do the driving. As they arrived at plaintiff's automobile she entered the right front seat and defendant got into the left front seat. The nephew was also in the front seat.
The parties travelled from the town of Lexington onto a rural blacktop road. During this time plaintiff was reading the new book to her nephew. The car was being driven at a speed of 25 to 30 miles per hour upon a clear roadway. It is in the evidence that the defendant opened the glove compartment so that the plaintiff would have a light by which to read the book to her nephew. There is evidence that the defendant became distracted by the laughing and talking of the plaintiff and her nephew, and that in some way the automobile driven by the defendant left the paved portion of the roadway and ultimately struck a culvert, as the result of which the plaintiff sustained injuries, the subject of this action.
The issue is whether the plaintiff, as owner-occupant of the automobile, is a "guest" within the meaning of chapter 95 1/2, § 9-201 (Ill Rev Stats, 1965), so that plaintiff's right of action must be based upon the wilful and wanton misconduct of the defendant.
It has been held that the plaintiff has the burden to prove that she was a "passenger" and not a "guest." Fischer v. Ross, 79 Ill. App.2d 372, 223 N.E.2d 722, citing Miller v. Miller, 395 Ill. 273, 69 N.E.2d 878; Leonard v. Stone, 381 Ill. 343, 45 N.E.2d 620.
The statute commonly called the "Guest" statute was adopted in Illinois in 1931 and remains substantially in its original form. As chapter 95 1/2, § 9-201 (Ill Rev Stats, 1965), it is in the following language (the iltalicized portions indicating the 1957 additions to the original statute):
"No person riding in or upon a motor vehicle or motorcycle as a guest without payment for such ride, or while engaged in a joint enterprise with the owner or driver of such motor vehicle or motorcycle, 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 motorcycle, 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 motorcycle or ...