Aldridge v. Morris

• Decision Date: 10 May 1949
• Docket Number: Gen. No. 10340.
• Parties: ALDRIDGE v. MORRIS.
• Court: United States Appellate Court of Illinois

337 Ill.App. 369

86 N.E.2d 143

ALDRIDGE

v.MORRIS.

Gen. No. 10340.

Appellate Court of Illinois, Second District.

May 10, 1949.

Appeal from Circuit Court, Peoria County; John T. Culbertson, Jr., Judge.

Action by Mary Aldridge, administratrix of the state of Mildred R. Seeber, deceased, against Arthur Morris, for wrongful death of decedent in automobile collision. From a judgment on a verdict for defendant, plaintiff appeals.

Affirmed.Cassidy, Sloan & Crutcher and Michael A. Shore, all of Peoria, for appellant.

Heyl, Royster & Voelker, of Peoria, for appellee.

BRISTOW, Justice.

Plaintiff, Mary Aldridge, administratrix of the estate of Mildred R. Seeber, deceased, is appealing from a judgment of the circuit court of Peoria County, entered upon a jury verdict finding defendant, Arthur Morris, not guilty, in a proceeding for damages for the wrongful death of plaintiff's deceased in a collision between the car driven by defendant and a Shell Oil Co. truck.

There are three legal issues presented on this appeal: whether the verdict of the jury is manifestly against the weight of the evidence; whether certain instructions were improper; and whether the matter of a covenant not to sue, entered into between plaintiff and the Shell Oil Co., was erroneously introduced into the cause.

From the controverted evidence it appears that at about 9:30 P.M. on January 11, 1947, plaintiff's deceased was riding in a car driven by defendant in a southerly direction on Washington Street in Peoria. This is a four-lane through street, approximately 56 feet wide, and is intersected by Western Avenue, on which the witness, Ralph Ford, was driving a Shell Oil Co. truck with 2 tankers, about 44 feet long, in an easterly direction, and approaching the intersection from the west.

According to the witness' testimony, he stopped at the stop sign, intending to turn left in order to proceed north on Washington Street. From the stop sign, however, it is not possible to see traffic approaching from the north on Washington Street, but after he pulled the front part of the truck just ahead or the curb, and while the remainder of the tankers were still behind the curb, he saw defendant's car approaching from the north about 275 feet away. Nevertheless, Ford proceeded to make the left turn across the intersection at about 2 or 3 miles per hour, with his truck and trailers at a 45 degree angle.

There were no street lights on the corner, and because of the offset in the street and the obstruction at the northwest corner of the intersection, which consisted of railroad ties piled up to 25 feet high, it appears from the exhibits introduced in evidence, that one traveling south on Washington, as defendant was doing, could not see a vehicle approaching from the west on Western Avenue. Inasmuch as defendant was precluded from testifying by virtue of sec. 2 of the Evidence Act, Ill.Rev.Stat. 1947, c. 51, § 2, his conduct is reported by the witness, Ford, who stated on one occasion that defendant was driving at 50 miles per hour, and at another, that he drove down Washington at 60 miles per hour.

There was conflicting testimony as to whether the pavement was icy in spots, nevertheless, when defendant's car was 50 feet from the oil truck, it began weaving, and skidded toward the center of the street, colliding into the rear tank of the Shell Oil truck, which was still partially blocking the intersection.

There was also conflicting evidence about the witness Ford's statement that due to the fact that the pavement was slippery he could not get his truck in motion fast enough to clear the intersection before the oncoming car.

It is uncontroverted, however, that the impact of the blow demolished the left side of defendant's car, although the right side was practically intact, and that the collision caused Mildred Seeber to sustain a basal fracture, from which she died.

Defendant's amended answer alleged, and plaintiff admitted, that the Shell Oil Co. paid plaintiff $4,500 for a covenant not to sue, entered into before this proceeding was commenced. Plaintiff denied, however, that this sum was for damages, and averred that it was only to purchase peace.

On the basis of the foregoing evidence, the circuit court entered judgment on the jury's verdict, finding defendant not guilty, and denied plaintiff's motion for a new trial.

With reference to plaintiff's contention that the judgment was manifestly against the weight of the evidence, it is fundamental that to sustain plaintiff's charge that defendant was guilty of wilful and wanton misconduct, plaintiff must establish that defendant either wilfully or intentionally injured plaintiff's deceased, or exhibited a reckless disregard for her life, and mere speed is not of itself proof of wilful and wanton misconduct. Streeter v. Humrichouse, 261 Ill.App. 556. Whether defendant's proceeding down the fourlane through street at 50 or even 60 miles per hour at a time when there was little or no traffic, and particularly when defendant could not see a vehicle approaching the intersection from the west because of the off-set in the street and the obstruction at the corner, constituted wilful and wanton misconduct, is clearly an issue for the jury. Morgan v. New York Cent. R. Co., 327 Ill. 339, 346, 158 N.E. 724;Ruwisch v. Knoebel, 233 Ill.App. 526.

The jury herein may have deemed more reprehensible the conduct of the driver of the Shell Oil truck who proceeded across the intersection with his two tankers extending some 44 feet in the face of the on-coming car, when he could easily have stopped before entering the intersection. In any event it is not the province of this court to substitute its judgment for that of the jury in determining what is wilful and wanton misconduct, and it does not appear that the verdict is manifestly against the weight of the evidence.

Appellant next contends that there were eight instructions given on behalf of defendant which were erroneous. Our court have recognized the harmless error doctrine, whereby it is sufficient if the instructions as a series correctly advise the jury as to the law, and will not mislead the jury, even though there may be some error in isolated instructions. Crow v. Blaser, 335 Ill.App. 281, 81 N.E.2d 742;Palmer v. Miller, 310 Ill.App. 582, 35 N.E.2d 104;Kavanaugh v. Washburn, 320 Ill.App. 250, 50 N.E.2d 761.

Instruction no. 5 informed the jury that the fact that defendant did not testify could not be considered as a circumstance for or against him, and is merely a correct statement of the law under sec. 2 of the Evidence Act. Instructions 6 and 7 informed the jury that they were not bound to take the testimony of a witness as true if they were satisfied from the facts that he is mistaken or his testimony is untrue, and that they had the right to take into consideration the witness's demeanor, the reasonableness of the statements made, his opportunity for knowing the facts, his intelligence, and prejudice, if any. This instruction has been approved in Village of Des Plaines v. Winkelman, 270 Ill. 149, 110 N.E. 417.

Instruction no. 8 states the elements necessary to constitute wilful and wanton misconduct, and it is not clear how it could be prejudicial to plaintiff. The words ‘drove and turned’ used herein may not be strictly descriptive, but they are not so misleading as to constitute reversible error. The use of the word ‘charge’ in instruction No. 9 clearly does not modify plaintiff's burden of proof; nor is the double admonition in instruction 10, nor the use of the expression ‘to show,’ in no. 11, of any consequence in misleading the jury. Beidler v. King, 209 Ill. 302, 70 N.E. 763,101 Am.St.Rep. 246. Moreover, the instruction 11, stating that plaintiff must prove that the acts charged were the proximate cause of the jury, is fundamental, and a correct statement of the law. Instruction no. 12 was deemed proper in Brown v. Ill. Terminal Co., 319 Ill. 326, 150 N.E. 242, 151 A.L.R. 1.

It does not appear, therefore, that the jury could have been misled by the instructions, nor that the law was misstated therein.

The fundamental issue in this cause is, however, whether the covenant not to sue entered into between plaintiff and the Shell Oil Co. should have been introduced into this proceeding. This is a question upon which the decisions are not in harmony, either in Illinois, or in other jurisdictions, and the broad underlying policies of the law are in apparent conflict. While it is elementary that contribution by joint tort feasors will not be enforced and that each is liable for the full damages on the ground that the law will not undertake to adjust the burdens of misconduct, it is an equally well established precept of justice that a person is entitled to only one satisfaction for an injury.

With these preliminary observations the court will re-examine the cases involving the issue and endeavor to formulate a rationale founded upon sound precedent. Illinois has been cited both as a jurisdiction where a covenant not to sue and the payment made therefor may be introduced in mitigating the damages of a joint tort-feasor, and as a jurisdiction where such evidence is inadmissible. 104 A.L.R. 932, 941.

Although Chicago v. Babcock, 143 Ill. 358(18),32 N.E. 271, has been cited as first establishing the rule that sums paid for a covenant not to sue can be introduced to mitigate the damages of a joint tortfeasor, the only issue in that case was whether suit could be maintained against the defendants, and the court held that it was bound by the jury's finding that the particular sum was paid, not for an accord and satisfaction, which would have released the defendants, but for a covenant not to sue, which rendered them still liable. The court stated, in passing, that, if the sum was merely part payment and not a bar to suit, it was to defendant's interest, for the damages recoverable would be reduced. The only Illinois authority relied upon therein was ...