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Ritter v. Taucher

OPINION FILED SEPTEMBER 29, 1978.

LOIS RITTER, PLAINTIFF-APPELLANT,

v.

EVELYN B. TAUCHER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Lois Ritter brought this action seeking to recover damages from defendant on the grounds that defendant, either individually or through her servant or agent, negligently drove her automobile causing an accident in which plaintiff suffered permanent injuries. At the conclusion of the presentation of evidence before a jury, the trial court granted defendant's motion for a directed verdict.

Although not clearly articulated by either plaintiff or defendant, this appeal raises these three questions: (1) whether a respondeat superior relationship existed between defendant and her son, the driver of the car; (2) whether defendant and her son were engaged in a joint enterprise; and (3) whether defendant was negligent in her failure to control the driver of her car. The trial court granted defendant's motion for a directed verdict on issue (1). On appeal, the parties raise issues (2) and (3) for the first time. We will discuss these issues only after considering the directed verdict on issue (1). We reverse and remand on the grounds that sufficient evidence was introduced to withstand defendant's motion for a directed verdict.

On the morning of January 3, 1971, plaintiff was riding as a passenger in a van driven by her husband, Robert Ritter (Ritter). Other members of the family, including their son-in-law, Tony Ricchetti (Ricchetti), were also riding in the van. They were travelling on route I-90 in a north-northwesterly direction on their way to Crystal Lake, Illinois. It had been snowing throughout the trip and was snowing heavily at the time of the accident. On that morning, defendant also was travelling in a north-northwesterly direction on route I-90. She had left her home in Chicago and was taking her son, Edward, back to college in Madison, Wisconsin. Edward had just spent the Christmas vacation with his family. Although there is some disputed testimony on the subject, as will be discussed shortly, it appears that he was driving defendant's car and defendant was riding in the front passenger's seat.

At around mile-post 19 1/2, defendant's car went into a skid as it was attempting to pass plaintiff's van and collided with the van's right rear fender. As a result of the impact, defendant's car skidded across the two left lanes and came to rest on the median strip which divided northbound and southbound traffic. Plaintiff's van came to rest on the right shoulder of the roadway. Plaintiff testified that she was thrown forward as a result of the impact and her head hit the van's dashboard.

After the accident, Ritter and Ricchetti went over to defendant's car. At this stage, there is a dispute as to what next happened. Ritter and Ricchetti testified that defendant indicated to them that she was the owner and driver of the vehicle. Defendant and Edward testified that defendant had never stated that she had been driving the car. Edward further testified that he believed that he and his mother said that he was driving the car. All witnesses agree that defendant gave Ritter a written sheet of paper with her name, address, telephone number, and the car's license plate number on it after the accident.

Two days later, plaintiff went to her doctor and complained of head and shoulder pains which she attributed to the accident. This suit was instituted to recover damages for those injuries.

OPINION

• 1 In granting a motion for a directed verdict, the trial court must determine that "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14. See also Coakley v. Nichols (1972), 8 Ill. App.3d 973, 976, 290 N.E.2d 315, 318.) Therefore, in this case, it is our responsibility to determine, with respect to each issue raised on appeal, whether all the evidence presented so overwhelmingly favors defendant that no contrary verdict based on that evidence can ever stand.

• 2 We will assume, since it is not disputed on appeal, that defendant was riding as a passenger in a car which she owned. In automobile accident cases, an owner-passenger may be held liable for damages caused by the acts of his driver under two theories. Liability may be predicated on a theory of imputed negligence or on a theory of personal negligence. An owner may be liable on a theory of imputed negligence if (1) his driver is in fact negligent, and (2) there is either a respondeat superior or joint enterprise relationship between the owner-passenger and driver. (Summers v. Summers (1968), 40 Ill.2d 338, 343, 239 N.E.2d 795, 799. See also Staken v. Shanle (1959), 23 Ill. App.2d 269, 277, 162 N.E.2d 604, 608.) Liability also may be based on a theory that the owner negligently failed to control the driving of his car. Palmer v. Miller (1942), 380 Ill. 256, 261, 43 N.E.2d 973, 976. See also Hodge v. Bzdon (1975), 33 Ill. App.3d 192, 194-95, 338 N.E.2d 136, 138-39.

• 3 We will not consider here whether Edward was negligent since this issue has not yet been determined by the trial court. The first issue before us is whether there was a respondeat superior relationship between Edward and defendant. In order to determine the existence of a respondeat superior relationship we must look to the true relationship of the parties in this case. (Hogan v. City of Chicago (1943), 319 Ill. App. 531, 535-36, 49 N.E.2d 861, 863.) Liability does not arise merely from the relation of parent and child. (Arkin v. Page (1919), 287 Ill. 420, 422, 123 N.E. 30, 31. See also White v. Seitz (1930), 342 Ill. 266, 271, 174 N.E. 371, 373.) It arises from the "fact that the driver of the automobile was at the time [of the accident] engaged in doing the owner's business." Arkin v. Page (1919), 287 Ill. 420, 423, 123 N.E. 30, 31. See also Graham v. Page (1921), 300 Ill. 40, 43-44, 132 N.E. 817, 819.

• 4 It is a rule of evidence that the "mere proof of one defendant's ownership of an automobile driven by another defendant is prima facie proof of agency, which if not rebutted will support a judgment for plaintiff." (Parrino v. Landon (1956), 8 Ill.2d 468, 470, 134 N.E.2d 311, 312. See also Howard v. Amerson (1925), 236 Ill. App. 587, 592-93.) In this case there is uncontradicted evidence that defendant owned the automobile being driven by Edward. Therefore, applying the law to the facts, proof of defendant's ownership is prima facie evidence that Edward is defendant's agent, and unless this evidence is rebutted, it will support a judgment for plaintiff.

Defendant contends that no agency relationship existed between Edward and her because she exercised no control over him while he was driving the car and because the purpose of the trip was social.

We have found that the existence of an agency relationship between a child-driver and his parent depends upon the nature of the business which the child is conducting by driving his parent's car. (Graham v. Page (1921), 300 Ill. 40, 43, 132 N.E. 817, 819. See also White v. Seitz (1930), 342 Ill. 266, 269-70, 174 N.E. 371, 372-73.) We find this to be the case whether or not the parent is riding in the car. In Graham, the court found an agency relationship when the child was driving her parent's automobile on a family errand. The child was using her father's car to pick up a pair of her shoes at a shoe repair shop. The court found ...


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