Appeal from the Circuit Court of Cook County, County
Department, Law Division; the Hon. IRVING GOLDSTEIN, Judge,
presiding. Reversed and remanded.
Rehearing denied January 15, 1969.
The defendants appeal a judgment in the sum of $8,699 entered following a jury verdict in favor of the minor plaintiff. All post-trial motions were denied.
The plaintiff is the niece of the defendant, Donna Raskin. The injuries arose under the following circumstances: The defendants have daughters aged four and five years and the parties reside on the same street, their homes being something over one-half a block apart. Plaintiff, then aged some four years, frequently came to the home of the defendants to play with the daughters. On December 26th, the plaintiff's mother telephoned to inquire whether the plaintiff could come over to play with the Raskin girls. In that conversation plaintiff's mother was told that the defendants were leaving at about 1:00 p.m. to deliver Christmas parcels. Following such conversation, plaintiff walked to the home of the defendants, arriving between 10:30 and 11:00 a.m. At about 1:00 p.m. the defendants were preparing to depart on the Christmas errands and defendant Donna Raskin told the children to get into the defendants' automobile. Plaintiff and the four-year-old Raskin girl preceded the adults and got into the front seat of the automobile, plaintiff being nearest the right front door. Donna Raskin came to the car and told the girls to get into the back seat of the car and turned to, or stood, at the right rear door of the sedan to open it for the children. Plaintiff is described as backing out of the front seat of the car and as she stood with one foot on the ground her left hand was on, or clutched, the center post between the front and rear doors of the car. As Donna Raskin opened the right rear door, the left hand of the plaintiff was pinched between the forward edge of the opening door and the center post. Donna Raskin did not observe the position of the child's hand as she stood facing the side of the car, and she first became aware of the situation when the child cried. It was necessary to close the car door to release plaintiff's hand. The defendant, Marvin Raskin, was not present at the scene but was in the house using the telephone. As a result of the injury plaintiff lost two joints of the small finger of her left hand.
The briefs and arguments submitted are directed to the issue whether plaintiff could recover upon a theory of ordinary negligence in the opening of the car door, or was a "guest" under chapter 95 1/2, § 9-201, Ill Rev Stats 1957, so that there could be recovery only if there was wilful and wanton conduct. Plaintiff contends that there should be recovery for ordinary negligence and that, as a matter of law, a minor of four years cannot be a guest, or in the alternative, there must be an express or implied consent of the parents to the trip, and that such was not present in either form.
The complaint alleges, (1) that ". . . the defendants owned, operated, maintained, and/or controlled . . . a certain motor vehicle which was standing in the driveway . . ."; (2) that the plaintiff was ". . . a minor four (4) years of age, who was seated in the front seat of the said automobile at the invitation of the defendants, or one of them"; and (3) that the plaintiff ". . . had been invited by the defendant, Donna Raskin, to enter the said automobile to have company for her own children also in said automobile." The complaint continues to allege negligence in opening the door and in negligently failing to give warning of the opening of the door and ". . . negligently conducted themselves and/or operated and controlled the said automobile so that the plaintiff was injured. . . ." There are no other allegations purporting to define plaintiff's status in the car. The answer denies the alleged negligence, but there are no specific answers to the allegations of invitation and presence in the car. They are deemed admitted. Chapter 110, § 40(2), Ill Rev Stats. In a colloquy between the court and counsel during the discussion of a motion at the close of plaintiff's evidence, there is reference to a motion theretofore made to dismiss the complaint as insufficient to state a cause of action. We do not find such motion in this record.
Defendants made a motion for a directed verdict at the close of plaintiff's evidence, and again at the close of all of the evidence. Such motions raised the issue of proof under the "guest statute." As to the first motion, there was argument by counsel as to whether the record showed express consent by plaintiff's parents to the trip. As to the latter motion, there was presentation of argument and authorities upon the matter of implied consent based upon general custody of the minor as entrusted to the defendants, as well as consent upon prior occasions for the making of trips.
At the conference on instructions, the court overruled the defendant's objections to plaintiff's tendered instruction directed to (1) the issues framed as ordinary negligence; (2) defining negligence; and (3) defining ordinary care. Defendant tendered an instruction setting forth the provisions of the "guest statute," instructions defining wilful and wanton conduct and an instruction setting forth elements of proof under the "guest statute." Each was refused. Following the court's rulings on the several instructions, defendant's counsel expressly reserving claims theretofore made, stated to the court that there should be an instruction as to the burden of proof upon the issues submitted to the jury. The court gave said instruction. The issues made are severally preserved in a post-trial motion.
The cause of action is framed in terms of ownership, operation and control of the automobile by the defendants and the presence of plaintiff in such automobile, "by the invitation of the defendants or one of them." The application of the "guest" statute is not an affirmative defense which it is necessary to plead. Fischer v. Ross, 79 Ill. App.2d 372, 223 N.E.2d 722. To the same effect see Weinrob v. Heintz, 346 Ill. App. 30; 104 N.E.2d 534.
The objective, or legislative purpose, of the statute has been stated by the Supreme Court on frequent occasions. It is contained in the concept that there should be a difference between the liability of one who, out of generosity, renders gratuitous service to a fellow traveller from those who render service for compensation or expectation of personal gain. The court has stated that it was "evidently" the intention of the Legislature to correct an abuse arising because those:
". . . who are charitably inclined should not be restrained by fear of the consequences of their own charitable act and the recipients should not be permitted to gain by the generosity of their host."
Clarke v. Storchak, 384 Ill. 564, 579, 52 N.E.2d 229; Summers v. Summers, 40 Ill.2d 338, 239 N.E.2d 795.
The statute, within its own language, does not provide an exception in favor of minors. In a number of cases our courts have applied the guest statute to minors without question. Farley v. Mitchell, 282 Ill. App. 555 (a 14-year-old girl); Johnson v. Chicago & N.W. Ry. Co., 9 Ill. App.2d 340, 132 N.E.2d 678 (an 8-year-old plaintiff). See also Busser v. Noble, 22 Ill. App.2d 433, 161 N.E.2d 150 and Jung ...