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Freer v. Rowden

MAY 13, 1969.

PATSY J. FREER, INDIVIDUALLY, AND PATSY J. FREER, AS ADMINISTRATOR OF THE ESTATE OF KENYON L. FREER, DECEASED, PLAINTIFF-APPELLEE, CROSS APPELLANT,

v.

IDA ALBERTA ROWDEN, DEFENDANT-APPELLANT, CROSS APPELLEE.



Appeal from the Circuit Court of Sangamon County; the Hon. FRANCIS J. BERGEN, Judge, presiding. Reversed and remanded.

TRAPP, P.J.

Defendant appeals from a judgment entered upon a jury verdict returned in an administrator's action for wrongful death. Plaintiff appeals from the court's order for a remittitur in the sum of $868 from the verdict upon the administrator's count for funeral and medical expense.

Defendant urges error in denying her motion for directed verdict and in refusing instructions directed to issues as to whether decedent was a guest under chapter 95 1/2, § 9-201, Ill Rev Stats 1965, and in submitting to the jury issues of defendant's general negligence under res ipsa loquitur, as well as for specific negligence pleaded.

Plaintiff alleged the death of the decedent while he was riding in an automobile under the control of the defendant with an allegation that the injury would not have occurred if defendant had used ordinary care. There was also submitted as specific negligence whether defendant drove the left front wheels off the slab of the passing lane onto the dividing median and was negligent in turning sharply back onto the pavement with the result that the car skidded and rolled over. Defendant urges that the evidence shows that the misadventure occurred when the left rear tire of the automobile blew out while defendant was passing another vehicle.

Both defendant and the decedent lived in Girard, Illinois, and were employed at the Allis Chalmers plant in Springfield, the former having been employed for some twenty-four years and the latter for two or three years. For a year defendant had driven her car daily to and from work, and decedent had been riding with her on most working days for some two or three months. On Mondays he drove his own car so that he could attend National Guard drills. As to the arrangement for such travel, defendant testified that decedent was a friend of her son and ". . . between the two of them they talked me into it." She further testified that every two or three weeks defendant would purchase a tank of gasoline for the two-year-old Ford Falcon used, and that while she accepted such purchase she never requested that he buy gasoline. The total distance travelled daily was between 50 and 60 miles.

There was possible impeachment through her statement at the Coroner's inquest that decedent purchased gasoline two or three times a week. The defendant testified that at the date of the inquest she had not recovered from the physical and emotional shock of the experience. The widow of the decedent testified that he brought $125 every two weeks as his pay, that she divided the money to apply on bills and gave some to decedent. Her statement that decedent said that $5 of the sum given him was for the ride was stricken as hearsay. The trial court denied defendant's instruction tendered as IPI 72.01, modified, defining a guest and ruled as a matter of law that decedent was a passenger for hire.

We have examined the reported cases wherein travel to and from work in another's automobile raised the issue of status as guest or passenger. In Marks v. Newburger, 69 Ill. App.2d 220, 216 N.E.2d 250 (1966), plaintiff and defendant travelled some 30 miles a day to a place of common employment in defendant's car throughout the five-day work week. The evidence disclosed that plaintiff purchased defendant's breakfast once or twice a week and an occasional tank of gasoline. The court concluded that plaintiff's status was that of guest in that there was no arrangement or understanding with regard to plaintiff's payment for such transportation. The result was to the contrary in McNanna v. Gach, 51 Ill. App.2d 276, 201 N.E.2d 191 (1964), wherein four youths each paid $2 per week to a fellow student for a daily ride to school. The court noted that there was a regular and continuing arrangement with certain and substantial payment made by agreement or custom, so that the plaintiff was a passenger as a matter of law. In Kinney v. Kraml Dairy, Inc., 20 Ill. App.2d 531, 156 N.E.2d 623 (1959), the court found that there was a passenger status in the reciprocal arrangement where the plaintiff and defendant on alternate days drove the other to work. In Dirksmeyer v. Barnes, 2 Ill. App.2d 496, 119 N.E.2d 813 (1954), defendant drove daily to work with three men who paid $2 per trip, and one who travelled a lesser distance paid fifty cents. The court held that the evidence sustained a finding that plaintiff was a passenger in that there was regular and continuous transportation provided for a regular, certain and substantial payment.

In this case there is some evidence that plaintiff's travel with defendant originated in the social relationship of plaintiff and defendant's son, and there is, we believe, a conflict of evidence as to whether there was an arrangement to provide transportation for an agreed or customary sum certain, or whether defendant received such tangible benefits as would motivate furnishing transportation. The court's determination that decedent was a passenger as a matter of law does not meet the standard stated in Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504. There is such difference in the testimony as to the arrangement that the issue of status was a question of fact for the jury. Kinney v. Kraml Dairy, Inc., 20 Ill. App.2d 531, 156 N.E.2d 623; McNanna v. Gach, 51 Ill. App.2d 276, 201 N.E.2d 191 (1964). We believe that the trial court erred in the ruling.

We examine certain issues which would again arise on a new trial. Defendant contends that the trial court erred in submitting both issues of specific and general negligence to the jury and instructing them upon the same, it being argued that the evidence shows that the defendant's left rear tire blew out causing the car to leave the slab and subsequently roll over. Following the event, a member of the State Police took custody of the tire, but it was mislaid or lost so that it was not produced at the trial or available for skilled examination. The testimony and the photographs in evidence show both the left front and left rear tires of the Falcon flat. The testimony is that the left rear tire was a two-ply tire rated four-ply with good tread, but that there was a break in the outer surface several inches in length and a longer break on the inner surface. No examination was made of the front tire for the stated reason that no break in the outer surface was observed. Plaintiff argues that the tire damage occurred as the car was turned back from the median strip onto the pavement, skidded some 99 feet and overturned. There is no evidence that the Falcon was driven at excessive speed.

Defendant testified that as she was passing on the left of another vehicle she heard a hissing noise for an instant, which she described as a blowout. The car went off the road and she hit her head and had no further recollection of what happened. One Dozier, called as a witness by defendant, testified that he was driving some 150 feet behind defendant's car, that he heard a noise, ". . . like a tire blew," and the car went off the slab to the left.

One Sweet, who was riding with Dozier, was called as a witness by plaintiff. On direct examination he testified that he thought a tire blew out, as he was surprised to see defendant's car swerve off the slab. On cross-examination, he stated that he did not see why the car left the pavement. Plaintiff also called one Skinner who testified that he was about a quarter of a mile behind the Falcon, that two or three cars intervened between them and that he saw defendant's car veer off as though to pass, then a cloud of dust and the car rolled several times.

Where general negligence has been pleaded it is a question of law whether or not the doctrine of res ipsa loquitur applies in a given case. Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 N.E.2d 305; Roberts v. Economy Cabs, Inc., 285 Ill. App. 424, 2 N.E.2d 128; McCleod v. Nel-Co. Corp., 350 Ill. App. 216, 112 N.E.2d 501.

There is authority that under certain circumstances, both general negligence and specific negligence may be issues in the alternative for the jury. The possibility is provided in Illinois Pattern Instruction, 22.02, although the Comment cites no authority. The Supreme Court did not have occasion to discuss the question in Metz or in subsequent cases presented to us. In Erckman v. Northern Illinois Gas Co., 61 Ill. App.2d 137, 210 N.E.2d 42 (1965), it was held to be error to instruct in the language of IPI 22.02 for the reason that there was no pleading of specific negligence, but in expectation of another trial the court pointed out that the inference of negligence arising under the doctrine of res ipsa loquitur was not necessarily inconsistent with proof of specific negligence, for to hold that proof of specific negligence precludes the application of the res ipsa loquitur doctrine:

". . . could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence. . . . If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should then be for a ...


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