APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
E. McAULIFFE, Judge, presiding.
MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Plaintiff, Lada Svrcek, as executrix of the estate of Leo Svrcek, her husband, filed a wrongful death action in the circuit court of Cook County against Fred Kudlata, as executor of the estate of Bessie Jiskra, seeking damages for her husband's death caused as a result of an automobile collision involving autos driven by Mrs. Jiskra, in whose auto Leo Svrcek was riding, and by a William Heise, Jr. Plaintiff's complaint was in three counts: the first count charged that Leo Svrcek had been a "passenger" in the auto and that Bessie Jiskra had driven in a negligent manner; the second count alleged that Leo Svrcek had been a "guest" in the auto and that Bessie Jiskra was guilty of wilful and wanton conduct in the manner she had driven her auto; the third count sought recovery under the family expense statute. (Ill. Rev. Stat. 1967, ch. 68, par. 15.) At the close of plaintiff's case, the trial court granted defendant's motion for a directed verdict in his favor on the first two counts. The record is silent as to the resolution of the third count. After her post-trial motions were denied, plaintiff brought this appeal. Although Heise and Arrow Petroleum Company, the owner of the Heise vehicle, had their cause of action against defendant consolidated with that of plaintiff at trial, only the Svrcek appeal is before us.
Both Bessie Jiskra and Leo Svrcek died after the collision and prior to trial. Heise, apparently the only other occurrence witness, was precluded from testifying at trial on the basis of the Illinois Dead Man's Act. (Ill. Rev. Stat. 1971, ch. 51, par. 2, amended, Ill. Rev. Stat. 1973, ch. 51, par. 2.) Consequently, plaintiff was compelled at trial to depend upon the pleadings in the case and reasonable inferences from the physical evidence found at the scene of the collision to reconstruct what had occurred.
Through the pleadings the parties admit that at approximately 1:30 P.M. on October 16, 1968, Mrs. Jiskra was proceeding south, and Heise was driving north, on Harlem Avenue, approaching 19th Street, a public highway running in an east and west direction, in the City of Berwyn. Svrcek was riding in the Jiskra auto. The two vehicles collided. Mrs. Jiskra died 2 hours after the collision without having regained consciousness. Mr. Svrcek was taken to a hospital where he died 2 months later. There is no issue as to Svrcek's contributory negligence.
In addition to the pleadings, Wilbur Koop, a Berwyn police officer with 19 years' experience, testified that he was called to the scene to investigate. The weather was clear. Upon arriving at the scene, Koop discovered that both autos had come to rest on the opposite sides of Harlem Avenue from which they had been travelling. The Jiskra vehicle had smashed head-on against the northwest corner of a building located on the east side of Harlem Avenue. The vehicle was pointed in a southeast direction. The Heise vehicle was found in the southbound lane of Harlem straddling the center lane and facing southwest. The rear left side of the Heise vehicle had sustained damage, and parts normally attached to the undercarriage were missing. The condition of the vehicles, including the steering and brakes, was found to be good.
Officer Koop noted an undisturbed accumulation of dirt in the northbound lane which was not present elsewhere in the immediate area. In Koop's opinion, this spot marked the point of impact, with the deposit coming from the undercarriages of the vehicles upon collision. Although there were no skid or gouge marks, Koop noticed a track mark in the shape of a sharp curve leading from the dirt to the southbound lane. Koop asserted this mark was caused by the rear wheels of Heise's auto making a sharp turn against their normal direction. Parts of an automobile were located in the east parkway of Harlem, and wheel marks were seen on the sod nearby, 35 feet from the Jiskra automobile. Although there were no wheel marks leading from the dirt to the building struck by the Jiskra vehicle, the dirt, wheel marks on the sod, and building connected in an imaginary straight line. The officer noticed no debris in the southbound lane of Harlem.
On cross-examination, Koop testified that he had no knowledge that the unattached vehicle parts on the east parkway belonged to the Heise auto. He also had no way of knowing whether the parts could have landed on the parkway as a result of the collision or whether they could have been moved there by one of the onlookers milling around the curb. Although the officer denied the possibility that the dirt accumulation could have marked the place of impact of more than one accident, he stated that he lacked certain knowledge of the exact source of the deposit of debris.
Since at the time of this occurrence the traditional Illinois guest statute was still in full force and effect, plaintiff offered two witnesses in an attempt to prove that Svrcek held a "passenger," nonguest status during his ride in the Jiskra vehicle.
Mary Gregor testified that she had been a good friend and neighbor of Mrs. Jiskra and the Svrceks. In the 4- to 5-year interval between the death of Mr. Jiskra and the date of this accident, the witness observed Svrcek come to the Jiskra home on a regular basis and perform manual chores around the house. He cut grass, raked leaves, and shoveled snow. Moreover, Svrcek would drive Mrs. Jiskra to the store "once a week, every week," and, upon returning to the Jiskra home, bring her groceries into the house. On the date of the collision Mrs. Jiskra was 72 years old.
The witness further testified that on the date of the accident, while outside of her house, she saw Mrs. Jiskra back her auto out of the driveway and Svrcek enter on the passenger side. Mrs. Jiskra then called out to the witness through the open car window that "they were going to Hillman's and that Mr. Svrcek would help her with her shopping." It was the first time Miss Gregor had ever seen Mrs. Jiskra drive an auto.
Defendant's counsel did not cross-examine Miss Gregor, but moved to strike all of her testimony on the ground of relevancy. The judge granted the motion and instructed the jury to disregard Miss Gregor's testimony. Trial was then recessed for the day.
On the following morning, plaintiff's counsel asked the trial judge in chambers to reconsider his ruling. The judge stated that he had erred in striking all of the testimony, and that he had been "premature" in striking Miss Gregor's statement of what Mrs. Jiskra had allegedly told her as the latter was driving away. The judge stated that he would reserve a ruling on defendant's motion as to the purported Jiskra statement until all the evidence was introduced.
Lada Svrcek, the plaintiff, testified that her husband retired from his maintenance job at a bank on January 1, 1968. He was 62 years of age at that time. The wife then gave testimony relating to damages.
After that testimony, plaintiff's counsel sought to elicit testimony from Lada concerning the nature of the relationship between her husband and Mrs. Jiskra. In so doing, counsel attempted to circumvent the preclusionary effect of the Dead Man's Act on the basis that defense counsel had waived the Act's protection in his opening statement to the jury. In that statement defense counsel had asserted that Svrcek and Mrs. Jiskra had been good friends; that Svrcek had performed a courtesy to his friend by accompanying her to the store; and that Svrcek was a beneficiary under Mrs. Jiskra's will. The trial court ruled that the opening statement of defense counsel did not constitute a waiver of the Dead Man's Act, and on that basis, would not permit plaintiff to testify as to her husband's ...