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Rowlett v. Hamann

JUNE 17, 1969.




Appeal from the Circuit Court of Cook County; the Hon. JOHN F. REYNOLDS, Judge, presiding. Affirmed.


This appeal is taken from the judgment of $4,100 entered against defendant, William Hamann, for personal injuries and property damages sustained by Harold Rowlett, plaintiff. The suit was based on an accident which occurred on June 23, 1965, at about 5:10 p.m.

The plaintiff alleged that on that date he was riding his motorcycle east on Grand Avenue in River Grove, Illinois; that he was in the exercise of ordinary care and caution for his own safety and that of others; that the defendant, who owned and operated his 1962 four-door Chevrolet, was driving said car east on Grand Avenue at the time in question. The plaintiff alleged negligence on the part of the defendant and fixed his damages at $5,000. At the close of all the evidence, over objection, plaintiff filed Count II of his complaint, wherein he alleged that defendant's conduct was willful and wanton.

From the evidence it appears that plaintiff was in the outside lane of a four-lane highway with two lanes going in each direction. He passed a truck which was in the inside lane, and when he was a little more than a car length ahead of the truck, halfway between the truck and a green Chevrolet [defendant's], which was also in the inside lane, the Chevrolet pulled into the plaintiff's lane, struck the front tire of the plaintiff's vehicle and caused plaintiff to be thrown onto the parkway after turning several somersaults. The plaintiff was dazed for a few minutes, then got up and began wheeling his motorcycle toward the Chevrolet, at which point the Chevrolet was driven off.

Charles Petrucciani, the driver of the truck, who had witnessed the accident, testified that he had sounded his horn when the Chevrolet swerved into the lane near the plaintiff, but that it had already made contact with the motorcycle, and he saw the plaintiff "flying over the handlebars." He stated that when the Chevrolet slowed down in front of him he observed the license number [DP 7028] and made a note of it on a piece of paper, together with the make and color of the car [green Chevrolet]. This paper was given to the plaintiff after the accident, and was introduced in evidence at the trial over the objection of the defendant. The witness testified that observing the paper at the trial did not refresh his memory as to the information it contained, but he stated he had looked at the license number of the car twice; that from the time he saw it the second time until he recorded it on the paper, a minute and a half or two minutes had elapsed. Petrucciani further testified that the driver of the Chevrolet was a man, but he could not identify the defendant as the driver. As to the facts surrounding the accident, the testimony of the plaintiff was to the same effect.

The defendant, William Hamann, who lived in River Grove, Illinois, testified that on June 23, 1965, he owned and had possession of a green Chevrolet; that he thought he had bought gasoline after work on the date in question at a station on Grand Avenue and River Road; that he did not recall what time he finished work that day; and that he was not involved in the accident that evening. Plaintiff introduced into evidence an official registration book issued by the Secretary of State, listing Illinois 1965 automobile license plates DP 7028 as having been registered to William Hamann and issued for a Chevrolet.

As previously set out, plaintiff's original complaint alleged negligence on the part of the defendant, and an amended complaint filed at the close of the case alleged willful and wanton conduct on the part of the defendant. Defendant objected to the amended complaint, but his objection was overruled. At the close of all the evidence the plaintiff tendered two forms of verdict at the conference on instructions. The defendant objected and demanded a form calling only for a general verdict, at which point plaintiff withdrew his forms and proceeded upon defendant's general verdict form. The jury returned a general verdict for the plaintiff in the sum of $4,100, and answered in the negative a special interrogatory as to whether the plaintiff was contributorily negligent. Judgment was entered on the verdict, and this appeal is from that judgment.

The defendant argues:

1) It was reversible error for the trial court to have granted plaintiff leave to file an amended complaint at the close of the evidence, for willful and wanton conduct;

2) The verdict was against the manifest weight of the evidence;

3) The trial court erred in failing to give "issues instructions";

4) The paper upon which plaintiff's witness wrote defendant's license number and the color and make of the car was inadmissible hearsay evidence, and the trial court erred in failing to exclude it.

With reference to the first argument, the defendant recognizes in his brief that the determination as to whether the misconduct was willful and wanton is generally a factual question; defendant states, "no hard and thin line definition can be made." See Myers v. Krajefska, 8 Ill.2d 322, 329, 134 N.E.2d 277. Nevertheless, the core of a willful and wanton charge is that the person accused evinced a reckless disregard for the rights and safety of the complainant. The state of mind of the defendant at the time of the occurrence is the material factor, and ordinarily such state of mind must be proved by circumstantial evidence. In most cases, more than one inference can be drawn from a given fact. In the instant case, there is evidence that the defendant drove off after striking the plaintiff. From that the inference can be drawn that defendant was unconcerned with the physical condition of the plaintiff whom he had just struck; or that, even though he did care, he feared liability. We cannot say that either of these inferences would be unreasonable; however, the jury would be entitled to believe either one from the facts before them.

Malice may be inferred from conduct, and whether or not such malice existed is a question of fact for the jury. Chicago Traction Co. v. Mahoney, 230 Ill. 562, 82 N.E. 868; Ficht v. Niedert Motor Service, Inc., 34 Ill. App.2d 360, 181 N.E.2d 386. In the record before us it cannot be said that the question of willful and wanton misconduct was so clearly in favor of the defendant that it was error for the trial court to have allowed plaintiff to amend his complaint and present the issue to the jury. An "error of judgment" by a motorist may establish no more than negligence, or it may establish willful and wanton misconduct, ...

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