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Cardin v. Cardin

JULY 30, 1973.

FRANCES CARDIN, PLAINTIFF-APPELLANT,

v.

BARBARA CARDIN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 11, 1973.

On May 28, 1967, Barbara Cardin (defendant) was driving her automobile in a southerly direction on Route 41 in the State of Wisconsin. Frances Cardin (plaintiff), her mother, had accompanied her and the two ladies were returning to their home in Illinois. Plaintiff occupied the front seat beside her daughter. A collision with another automobile occurred and plaintiff was injured. On December 12, 1967, she filed this suit seeking damages. A jury returned a verdict for defendant. The trial court denied plaintiff's post-trial motion and she has appealed.

Plaintiff's complaint alleged that she was a passenger in defendant's vehicle. Five charges of negligence by defendant were alleged. No allegations were made in the complaint as to whether the law of Illinois or Wisconsin should govern the rights of the parties beyond the allegation that the mishap occurred within Wisconsin.

On June 10, 1970, defendant filed a motion for summary judgment on the theory that she had not been negligent. This motion was supported by lengthy excerpts from the discovery depositions of both parties. On July 9, 1970, plaintiff filed a reply to this motion. She analyzed the evidence in the depositions regarding the showing of negligence and further stated that the action was "* * * brought under the law of the State of Wisconsin, where there is no Guest Statute and the law of comparative negligence prevails." The motion was denied.

At the trial, at the close of all the evidence, defendant moved orally for a directed verdict on the ground that the complaint was insufficient in law. The court stated that this motion would be allowed. The court then granted plaintiff permission to file an amendment to the complaint. This was filed on February 8, 1972, designated Count II. It alleged that plaintiff was a passenger in the vehicle and that defendant was guilty of wilful and wanton conduct in five specified charges. A written motion by defendant for directed verdict on Count II at the close of all the evidence was denied. The cause was submitted to the jury only on the wilful and wanton conduct theory expressed in this amendment to the complaint. Actually, the proof showed that plaintiff's legal status was that of guest, as distinguished from a passenger. See Miller v. Miller, 395 Ill. 273, 69 N.E.2d 878.

Plaintiff's post-trial motion prayed for an order directing the issue of liability in favor of plaintiff on the negligence count and submitting the cause to the jury on the issue of damages only; or, alternatively, for a new trial. The post-trial motion urged that the court should have applied the law of Wisconsin rather than the law of Illinois.

In this court, plaintiff contends that the trial court erred in applying the law of Illinois but should have applied the law of Wisconsin to avoid hardship to plaintiff; defendant waived the right to application of law of Illinois by failure seasonably to request this and the court erred in failing to direct a verdict on liability in favor of plaintiff at the close of all the evidence. In response, defendant urges that the trial court correctly applied the law of Illinois because that state had most significant contacts with the situation at bar; defendant's motion for directed verdict at the close of all the evidence was actually not a motion for judgment on the pleadings and was timely made and the evidence showed that defendant was not guilty of wilful or wanton misconduct or negligence and supports the verdict of the jury.

In our opinion, the single virtually dispositive issue here is whether the law of Wisconsin or of Illinois should be applied. When plaintiff sustained her injuries on May 28, 1967, the Illinois Vehicle Code barred her recovery except for wilful and wanton misconduct by defendant. (Ill. Rev. Stat. 1967, ch. 95 1/2, par. 10-201.) There was no such legislation in Wisconsin. Also on that date, prior to the decision in Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, Wisconsin law would have been applied in accordance with the doctrine of lex loci delicti. However, the application of this principle was terminated by Ingersoll which replaced it with the rule of "most significant contacts." Ingersoll sets out the rationale and the method of applying the new rule. The decision in Ingersoll was originally filed on March 24, 1970, and the opinion of the court, as modified on denial of rehearing, was filed October 7, 1970. Thus, we have a situation in which the change in the law promulgated by Ingersoll occurred after plaintiff was injured (May 28, 1967) and after plaintiff had filed her suit (December 12, 1967) but before the trial of the cause (February, 1972). We note also that Ingersoll affirmed a decision of the Appellate Court of Illinois filed February 25, 1969. Ingersoll v. Klein, 106 Ill. App.2d 330, 245 N.E.2d 288.

• 1 In the case at bar, it seems that Illinois is actually the state with the "most significant contacts." Both parties live in Illinois and had left the state only for a short trip. The mishap occurred while they were returning to their home. Thereafter, plaintiff spent a very short time in a hospital in Wisconsin and then returned to Illinois for additional hospitalization and medical attention. But, the case presents an additional element.

• 2 The problem arises from the following statement in Ingersoll, (46 Ill.2d at 49):

"We are aware that the views expressed herein may create hardship in other cases filed in reliance upon the doctrine of lex loci delicti. In such cases where hardship would result, the rules expressed herein shall not apply. See: Molitor v. Kaneland Com. Unit Dist., 18 Ill.2d 11, 27 and cases cited therein."

Were it not for this pronouncement, our path would be clear. In People ex rel. Bauer v. Water Com., 20 Ill.2d 139, 144, 169 N.E.2d 350, the Supreme Court held:

"Equally familiar is the rule that even if a judgment has been entered and a cause is pending on appeal, the reviewing court must dispose of the case under the law in force when its decision is rendered. Dolan v. Whitney, 413 Ill. 274; People ex rel. Eitel v. Lindheimer, 371 Ill. Ill. ...


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