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08/24/89 Kathy S. (Johnson) v. Betty Louise Johnson

August 24, 1989

OF PHILLIP M. JOHNSON, SR., DECEASED, ET AL., PLAINTIFFS-APPELLEES

v.

BETTY LOUISE JOHNSON, EX'R OF THE ESTATE OF WENDELL O. JOHNSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

KATHY S. BLACKBURN, Special Adm'r of the Estate

543 N.E.2d 583, 187 Ill. App. 3d 557, 135 Ill. Dec. 200 1989.IL.1297

Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

This is an action for wrongful death. One count was based on intentional tort, the other on negligence. Plaintiffs' counsel abandoned the intentional tort theory and argued for a verdict based on negligence. The jury returned a verdict for defendant on the intentional tort count, and for plaintiffs in the amount of $599,000 on the negligence count. The circuit court of Macon County denied defendant's request for a judgment n.o.v. Defendant appeals.

The cause arises from a tragic alcohol-related altercation on July 4, 1981, at a trailer camping ground at Lake Shelbyville. Wendell Johnson and his wife, Betty, had retired for the night in their trailer. Their son, Phillip, who was intoxicated and had earlier argued with Wendell, came to the senior Johnson's trailer, argued with Betty, and knocked her down. Wendell arose, confronted Phillip, and, in a fight, obtained a knife and inflicted fatal wounds.

The facts indicated that when Wendell arose, he exclaimed, "You hit my wife; you hit my wife!" Some evidence indicated he may have said, "I am going to kill you; I am going to kill you." Phillip suffered 10 wounds, of which some were not serious, but the one to the heart and the one to the lung were both sufficient to cause the resulting death. Another camper testified he arrived at the end of the fight and saw Wendell crying, holding Phillip, and expressing his sorrow.

The principal issue relates to whether this fact situation can sustain a negligence verdict. Defendant argues an intentional tort took place and the jury verdict cannot stand. It is argued that Phillip had not attacked Wendell and was unarmed. However, the defense at trial was one of self-defense.

Judgment n.o.v. should be "entered only in those cases in which 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.

Plaintiffs' negligence theory of the case was that Wendell either (1) flailed or swung the knife, a dangerous instrumentality, in such a fashion as to injure Phillip, or (2) used excessive force in his self-defense, in that he should have known with the exercise of ordinary care that the use of deadly force was unreasonable.

This primary issue is interrelated with defendant's objection to the trial court's issue instruction. Defendant asserts the court instructed the jury in a legally inconsistent fashion. The court instructed the jury, concerning plaintiffs' negligence claim, that plaintiffs contend Wendell was negligent in one or more of the following respects:

"Wendell O. Johnson negligently flailed, slashed and swung a dangerous instrumentality, a knife, in such a manner as to strike Phillip M. Johnson, ...


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