APPEAL from the Circuit Court of McHenry County; the Hon.
WILLIAM A. CARROLL, Judge, presiding.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from a judgment notwithstanding the verdict entered in favor of the defendant.
Plaintiff and defendant had gone on hunting and fishing trips for several years prior to 1967. In the fall of 1965 the defendant purchased a Sports Van vehicle which contained cooking facilities, a bunk and space to store hunting and fishing equipment. Shortly after the purchase, defendant drove to the plaintiff's house to show him the vehicle. At that time, plaintiff stated that if the defendant was ever planning to go on a hunting trip, he would "like to participate", "would supply the food" and would "pay for the gas."
Subsequently, plaintiff and defendant went on several hunting trips in the Van. The plaintiff testified that on all these trips he paid for gas, brought food for everyone and also brought liquor for the defendant's consumption. The defendant, however, testified that he and plaintiff shared the expenses of food and gasoline at the end of each trip.
On November 22, 1967, at 4:30 A.M., plaintiff, his son and defendant left for a hunting trip. Plaintiff testified that he had brought along food sufficient to feed all three of the parties. The gas tank being full, he had not contributed toward the gas. The defendant testified that he did not expect plaintiff to pay any share for gas on the trip.
The defendant proceeded westerly on Route 176. At the intersection with Route 31, Route 176 angles approximately thirty degrees to the right. The weather was clear, the road dry but at about 5:00 A.M. it was still dark when the defendant entered the intersection, failed to make the turn and ran his vehicle off the highway. Defendant admitted that there was no physical fact or reason why he did not see the turn. He testified that he was familiar with the intersection, having driven through it an average of fifteen times in each of the last seventeen years, but further stated he had never driven through the intersection at night.
The plaintiff filed a two count complaint for injuries received. Count I alleged that plaintiff was a "passenger" in the vehicle and that defendant was guilty of ordinary negligence; Count II alleged that plaintiff was a "guest" and that defendant was guilty of wilful and wanton misconduct.
At the close of all the evidence, plaintiff moved for a directed verdict. The trial judge granted this motion and directed a verdict as to liability, finding that, as a matter of law, plaintiff was a passenger and defendant was guilty of ordinary negligence. The plaintiff, upon having liability directed in his favor, withdrew Count II. The case was then submitted to the jury solely on the question of damages. The jury returned a verdict for $46,000.
In his post-trial motion, defendant moved for a judgment n.o.v. or, in the alternative, a new trial. The trial judge granted this motion and entered judgment n.o.v. for the defendant reversing the earlier decision and held that the plaintiff was a guest as a matter of law. Plaintiff appeals from that decision.
• 1 Assuming that the trial judge was correct in finding that the plaintiff was a guest as a matter of law, the question before this Court is, did this fact, of itself, justify a judgment n.o.v. for the defendant? When the trial judge reversed his findings and held that the plaintiff was a guest as a matter of law, only the allegations of Count I should have been removed from the case. Still to be resolved was the issue of liability under Count II. In his memorandum opinion the trial judge held that, as a matter of law, the plaintiff was a guest; he did not hold that as a matter of law the defendant was free from wilful and wanton misconduct. It is true, subject to the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, that the trial judge cannot remove the entire case from the jury if there is evidence which would tend to prove anyone count. Vail v. Graham (1930), 259 Ill. App. 172, 176.
The defendant does not appear to disagree with the foregoing. However, it is his position that Count II had been "voluntarily" withdrawn by the plaintiff at the time the judge directed a verdict for the plaintiff and argues that, consequently, at the time defendant presented his post-trial motion, only Count I was before the court. In order to rule on this point it is necessary to refer to the dialogue which occurred at the time the plaintiff received his directed verdict.
"THE COURT: Pardon me. Suppose I make up my mind to send this case to the jury on Count One, what becomes of Count Two? You can't send them both to the jury. I will not permit that they both go to the jury. They are entirely different; they are inconsistent. It is one or the other.
THE COURT: * * * I am boiling it down to Count One.
Mr. DECKER: (Plaintiff's attorney): If he is a passenger and it is a negligence case, then the plaintiff is entitled to a directed verdict because I can't see any other way. I believe as a matter ...