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Brown v. Nale

FEBRUARY 20, 1969.

MARION RAY BROWN, ADMINISTRATOR OF THE ESTATE OF JACQUELINE M. BROWN, DECEASED, AND MARION RAY BROWN, INDIVIDUALLY, PLAINTIFFS-APPELLEES,

v.

SAM NALE, ADMINISTRATOR OF THE ESTATE OF ROSEMARY NALE, DECEASED, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. JOHN F. SPIVEY, Judge, presiding. Judgment affirmed.

TRAPP, P.J.

A jury returned verdicts for plaintiff, individually for personal injuries, and as administrator of the estate of his deceased wife, and found for the plaintiff as counter-defendant upon the counterclaim of the defendant administrator for the deceased Rosemary Nale. Post-trial motions were denied, and the defendant appeals.

There were no known eyewitnesses to the automobile collision which resulted in the deaths and injuries in issue. The first report of the event was received by the Sheriff's office of Vermilion County at 12:40 a.m., December 12, 1965, but the source of the report has never been ascertained. The automobiles were discovered at a point 1.1 miles south of the Village of Westville on Illinois Route 1. This highway is described as 48 feet wide, having two lanes northbound and two lanes southbound, but without any median or division separating the respective directions of traffic.

It is agreed that the cars came into collision upon the northbound traffic lane and were found upon the east shoulder but partially upon the pavement, with the right front corner of plaintiff's Buick driven some two feet into the left side of defendant's Chevrolet.

Plaintiff was called but was not permitted to testify upon objection made pursuant to the statute, c 51, § 2, Ill Rev Stats 1965. There is no dispute that plaintiff's car was northbound. It is the latter's contention that the car of the defendant's decedent was southbound, became out of control on a pavement described as wet and slippery and moved into the northbound lanes and caused the collision. This is supported by complex testimony of opinion reconstructing the movement of the vehicles.

It is the theory of defendant that the car of Rosemary Nale was travelling north in the right portion of the northbound lane and that the plaintiff, passing in the left portion of the northbound lane, struck the Nale car and that they ultimately collided with great force. This position is also propounded in complex testimony of opinion reconstructing the event.

There is no issue raised which calls for analysis of the contradictory reconstruction testimony. It is urged that the court erred in admitting testimony in the following categories: (1) testimony as to the "reputation" of the plaintiff for careful driving, and of the reputation of the deceased, Jacqueline M. Brown, for careful habits, and (2) the testimony of three witnesses that they had seen Rosemary Nale driving southward toward the place of collision a relatively short time before.

Plaintiff, individually and as administrator of the decedent's estate, undertook to prove that each was free from contributory negligence through testimony directed to respective reputations for careful habits. Defendant objected upon the ground that such evidence must concern and relate to habits of care, rather than reputation as to such. This objection was overruled. Defendant had the same burden of proof upon his counterclaim for the death of Rosemary Nale. The witnesses called by the defendant were asked concerning care in the observed driving habits of the decedent. Plaintiff objected to the questions and stated that the testimony must be directed to reputation in the community. The report of proceedings shows a conference off the record, and defendant thereafter framed questions and received answers in terms of the reputation of Rosemary Nale as to driving habits.

The authorities in Illinois support the conclusion that the trial court erred in overruling the defendant's objection to testimony establishing the reputation of plaintiff and plaintiff's decedent as to habits of due care. The ruling stated in summary in Gard, Illinois Evidence Manual, § 104:

"As distinguished from reputation for care or lack of care, which is not admissible, evidence of habit may be relevant and admissible on the issue of negligence as a basis for an inference that the conduct in question conformed to the habit."

Illinois Pattern Instruction, § 10.08 expressed the rule as: ". . . evidence tending to show that the decedent was a person of careful habits. . . ." See also Cleary, Handbook of Illinois Evidence, 1st Ed, § 7.14.

Habits of care are matters of specific conduct and acts while reputation relates to the community estimate or conclusion concerning an individual. In civil cases it may be stated in brief that evidence of reputation is not admissible except in those instances where reputation itself is in issue. Handbook of Illinois Evidence, 1st Ed, §§ 7.4-7.6. In Hughes v. Wabash R. Co., 342 Ill. App. 159, 95 N.E.2d 735, the witnesses testified to the observed practices of the decedent in driving. In Ingle v. Maloney, 234 Ill. App. 151, the testimony offered concerned habits of care as observed by witnesses. See also the cases listed in Lobravico v. Checker Taxi Co., Inc., 84 Ill. App.2d 20, 228 N.E.2d 196.

Only two cases are cited by defendant and an extensive albeit not all-inclusive examination of the reported opinions of our courts disclose but two instances in which the opinion referred to reputation of habits of due care. In Illinois Cent. R. Co. v. Prickett, 210 Ill. 140, 71 N.E. 435, the decedent was the engineer of a travelling locomotive which exploded. In speaking of the evidence in terms of the reputation of the engineer for careful habits, the court cited Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, 35 N.E. 358; and Chicago B. & Q.R. Co. v. Gunderson, 174 Ill. 495, 51 N.E. 708. In neither case was there reference to habits of care in terms of reputation. In Thompson v. City of Bushnell, 348 Ill. App. 395, 109 N.E.2d 346, there was, again, an explosion when the city permitted gas to leak into the sewers and such gas, which had accumulated in decedent's basement, exploded when he lighted papers in his furnace. The opinion does not show that objection was made at the trial to evidence concerning decedent's reputation as to habits of care and caution. Upon appeal it was argued that the inference of due care must be drawn from evidence of habits, but the court held that there was no reversible error.

Except as to a few individuals in specialized activities it is doubtful that it would be possible to establish habits of due care in relation to major explosions. At any rate, cases of explosions arising under uncommon circumstances are certainly distinct and different from the usual and frequent acts incident to motor ...


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