Augustine v. Stotts

• Decision Date: 08 April 1963
• Docket Number: Gen. No. 63-F-2
• Citation: 189 N.E.2d 757,40 Ill.App.2d 428
• Parties: Martha AUGUSTINE, Plaintiff-Appellee and Cross Appellant, v. Claude R. STOTTS, Co-Defendant, Cross Appellee, and Carmella Thomas, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 757

189 N.E.2d 757

40 Ill.App.2d 428

Martha AUGUSTINE, Plaintiff-Appellee and Cross Appellant, v. Claude R. STOTTS, Co-Defendant, Cross Appellee, and Carmella Thomas, Defendant-Appellant.

Gen. No. 63-F-2.

Appellate Court of Illinois, Fourth District.

April 8, 1963.

McGlynn & McGlynn, East St. Louis, for appellant.

Goldenhersh & Goldenhersh, East St. Louis, for plaintiff-appellee and cross-appellant.

Brady, Donovan & Hatch, East St. Louis, for defendant-cross-appellee.

CULBERTSON, Justice.

This is an appeal from a judgment of the Circuit Court of St. Clair County, based on a verdict as against defendant, CARMELLA THOMAS, in the sum of $12,000.00 in favor of plaintiff, MARTHA AUGUSTINE. Martha Augustine is the mother of Carmella Thomas, and was riding with her as a guest, and filed the action as against her daughter for personal injuries sustained as the result of wilful and wanton misconduct of her daughter under the guest statute. Action was also taken as against a co-defendant who was driving another car. The jury returned a verdict of not guilty as to the co-defendant.

On appeal in this Court defendant contends that the Court below should have directed a verdict in favor of defendant, or judgment notwithstanding the verdict, or granted her a new trial, by reason of certain errors committed in the trial of the cause.

As pointed out on appeal in this case by plaintiff, defendant made a left turn into the oncoming automobile driven by the co-defendant, who was found not guilty by the jury.

The facts were such as to raise a question of fact for the jury as to whether defendant was guilty of wilful and wanton misconduct either in seeing the oncoming automobile and wilfully, wantonly, or recklessly attempting to race across the highway ahead of such automobile, or being guilty of wilful and wanton misconduct in failing to look and discover the oncoming automobile on the state highway. The jury found, as a fact, that defendant as a host driver was guilty of wilful and wanton misconduct. Since the jury had come to such conclusion, and (on the basis of the record before us which made the determination of whether or not defendant was guilty of wilful and wanton misconduct a question of fact for the jury) this Court cannot substitute its judgment for such conclusion on appeal in this Court (McCormack v. Haan, 20 Ill.2d 75, 78; Kunz v. Larson, 15 Ill.App.2d 126, 145 N.E.2d 746).

It is contended on appeal in this Court, likewise, that statements or questions put to prospective jurors on the voir dire examination concerned matters outside of the issues involved, and was so prejudicial as to be ground for mistrial. The specific statement was that although plaintiff was the mother of defendant and was suing her, they were on friendly terms, and there were no hard feelings between them because of the lawsuit. The record shows none of the questions which were propounded in the examination of the jury. On the record there is no showing of any abuse of discretion by the Court in denying the motion for mistrial (Bartels v. McGarvey, 331 Ill.App. 275, 278, 73 N.E.2d 123; Reinmueller v. Chicago Motor Coach Co., 341 Ill.App. 178, 187, 93 N.E.2d 120). In absence of any valid record the point raised by defendant is not properly preserved for review. The Trial Judge had the opportunity to observe and hear what transpired during voir dire, and again considered the matter at the conclusion of the trial when the motion was put into the record. Under the record before us we cannot conclude that there was a basis for reversal on appeal in this cause.

Another point raised on appeal by defendant is the...