APPEAL from the Circuit Court of Winnebago County; the Hon.
ROBERT C. GILL, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
Plaintiff, June E. Nacvich, was both the owner of and passenger in a van driven by defendant, James H. Downing, which crashed on November 9, 1973, at 1 a.m. in Rockford, Illinois. Plaintiff's complaint, filed in Winnebago County circuit court, alleged alternative counts of negligence and willful and wanton misconduct against the defendant, Downing, and also contained a Dramshop action against the Stardust Lounge (Stardust) for its sale of alcoholic beverages to the defendant, Downing. Subsequently, Stardust's motion for summary judgment against plaintiff was granted. The court found the plaintiff was barred from recovery against Stardust under the Dramshop Act as a matter of law, due to her voluntary participation in drinking with the defendant, Downing, on the night in question. The trial court's disposition of the summary judgment motion is not at issue in this appeal.
In addition, a jury verdict was returned in plaintiff's favor against the defendant, Downing (hereinafter called "defendant"), for $35,000. The trial court subsequently, on defendant's motion, vacated the judgment for the plaintiff and entered judgment notwithstanding the verdict in favor of the defendant. The trial court also granted defendant's motion for a new trial. Plaintiff appeals from the entry of these two orders.
Plaintiff and another passenger, Rosalind Santini, were the sole witnesses at the trial who testified concerning the accident and events leading up to the accident. Defendant was unavailable for the trial and did not testify. Plaintiff and defendant were engaged to be married at the time of the accident and when the trial took place.
Plaintiff testified to the following sequence of events at trial. On November 8, 1973, plaintiff and defendant set out for an evening together at the Stardust Lounge in Rockford, Illinois. The plaintiff and Downing spent approximately 3 1/2 hours at the lounge, although they were often separated from one another. The plaintiff, at trial, testified that she consumed approximately four or five drinks and the defendant had at least five or six drinks at the lounge.
When the lounge closed, the plaintiff and defendant, with five other friends, decided to continue the party at a friend's house. However, first they went to a tavern next door to purchase some beer before they embarked in plaintiff's van for the trip to their friend's house.
The plaintiff had the keys to her van in her possession when she left the lounge. It appeared to the plaintiff at this time that the defendant had had a lot to drink. Plaintiff and defendant then proceeded to have an argument over who was going to drive her van. Plaintiff questioned defendant's ability to drive, and, after he convinced her he could handle it, plaintiff allowed him to do so.
Rosalind Santini also requested that defendant not drive, because, in her opinion, he looked drunk. Santini testified further that defendant persuaded plaintiff that he was capable of driving and that "he could handle it." Plaintiff then handed defendant the keys. Santini testified that defendant proceeded to drive the van on North Main Street to John Street, traveled John Street to Church Street, took Church Street to Whitman Street. During this brief drive, defendant was traveling at approximately 35 miles per hour and appeared to be driving normally. According to Santini, defendant then began racing a Volkswagen down Whitman Street at approximately 55 miles per hour, which was in excess of the speed limit. According to Santini, the plaintiff and herself urged the defendant to slow down. The other passengers urged the defendant to continue racing, shouting, "Come on, Secretariat!" Defendant continued weaving and racing the Volkswagen at a high rate of speed, and as he approached an exit ramp, he went off the road and struck a utility pole.
Plaintiff was injured and scarred along her legs and hands. Her leg is distorted and there is some permanent disability in her knee. The extent of plaintiff's injuries, however, is not at issue in this court.
The jury's general verdict for the plaintiff does not indicate under which count of either negligence or willful and wanton misconduct their verdict was entered. In addition, special interrogatories were not submitted to the jury for findings under either count.
Plaintiff contends that this court must examine the evidence to determine whether the jury's verdict for the plaintiff was contrary to the manifest weight of the evidence under either the negligence count or the willful and wanton misconduct count. Plaintiff contends that the jury reasonably could have found (1) plaintiff's conduct free of contributory negligence and defendant's conduct in drag racing with a van full of people to be negligent, or (2) that defendant's conduct was willful and wanton and that plaintiff's conduct was free of contributory willful and wanton misconduct.
• 1 We need not consider plaintiff's contention that the jury reasonably could have found the defendant guilty of negligence and plaintiff's conduct free of contributory negligence. The general rule is that when the jury returns a general verdict without specifying upon which count of the complaint it is based, the presumption is that the jury's verdict was based upon the count of the complaint where malice was the gist. In this case, the jury had a choice of returning a verdict based on negligence or on willful and wanton misconduct, and we must presume their general verdict was based on the willful and wanton misconduct charge. Olofsson v. Wood (1959), 23 Ill. App.2d 32, 161 N.E.2d 681; Goodwin v. Lamb (1951), 344 Ill. App. 449, 101 N.E.2d 207; Greene v. Noonan (1939), 372 Ill. 286, 23 N.E.2d 720.
The sole issue is whether the trial judge correctly entered judgment n.o.v. in defendant's favor in finding that the jury's general verdict under a willful and wanton misconduct count was clearly against the manifest weight of the evidence. The standard for determining whether a judgment n.o.v. was properly entered was stated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, where the court said:
"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no ...