Clarke v. Storchak

• Decision Date: 12 January 1944
• Docket Number: No. 26828.,26828.
• Citation: 384 Ill. 564,52 N.E.2d 229
• Parties: CLARKE v. STORCHAK.
• Court: Illinois Supreme Court

384 Ill. 564

52 N.E.2d 229

CLARKE

v.STORCHAK.

No. 26828.

Supreme Court of Illinois.

Nov. 19, 1943.

As Modified on Denial of Rehearing Jan. 12, 1944.

Action under the Injuries Act by Margaret Clarke, administratrix of the Estate of Samuel R. B. Clarke, decedent, against Simon Storchak to recover for the death of plaintiff's husband who was killed in an accident while riding as a passenger in defendant's automobile. From a judgment for defendant, plaintiff appeals.

Affirmed.Appeal from Circuit Court, Cook County; Daniel P. Trude, judge.

Owens & Owens, of Chicago (Thomas L. Owens and Albert E. Jenner, Jr., both of Chicago, of counsel), for appellant.

Miller, Gorham, Wescott & Adams, of Chicago (Herbert C. DeYoung, of Chicago, of counsel), for appellee.

THOMPSON, Justice.

The plaintiff, Margaret Clarke, administratrix of the estate of her deceased husband, Samuel R. B. Clarke, brought suit in the circuit court of Cook county, under the Injuries Act, to recover damages sustained when her husband was killed on July 18, 1939, while riding as an alleged passenger in the automobile of defendant, Simon Storchak.

The automobile in which the deceased was riding was being driven by defendant in a northerly direction on State highway No. 42, toward Waukegan, Illinois. When it reached a point approximately one block south of where it subsequently plunged through the iron post and wire-netted rail above Downey road which was an underpass, it took a sudden turn to the left and went diagonally across the road for a distance of about 150 feet and off the pavement on the left side of the road. After traveling off the pavement about 150 feet more, it went diagonally to the right across the road for a distance of approximately 150 feet, at which point along the highway the automobile plunged through the railing to the underpass below. Although the automobile had been traveling at a speed varying from 35 to 65 miles an hour, at the time it suddenly turned to the left it was being driven at a speed of approximately 45 miles an hour.

The complaint in one count consists of nine paragraphs. Paragraph 5, subdivided into sections (a), (b), and (c), charges ordinary negligence in the operation of the automobile, and paragraph 6, subdivided into sections (a), (b), and (c), charges wilful and wanton conduct.

Defendant filed his answer and denied both paragraphs 5 and 6 of the complaint. He also set up additional defenses as a part of his answer, alleging that in paragraph 5 of plaintiff's complaint and subparagraphs (a), (b), and (c), the plaintiff failed to state a cause of action, because at the time and place of said accident the deceased was riding as a guest, and further, that the deceased knew or saw, or in the exercise of due care and caution should have known and seen, the manner in which defendant's automobile was being operated.

Plaintiff filed an amended reply containing six paragraphs, and denied, in paragraphs 1 and 2, every allegation of fact contained in the additional defenses. In paragraphs 3, 4, and 5, she states, her action being brought by virtue of the authority granted in section 1 of the Injuries Act, Ill.Rev.Stat.1941, c. 70, § 1, she is not deprived of her right of action by the provisions of section 42-1 of the Motor Vehicle Act (Ill.Rev.Stat.1941, chap. 95 1/2, par. 58a;) that said section 1 was not amended by section 42-1; that if it was, as contended by defendant, such section 42-1 is unconstitutional, being in violation of section 13 of article IV, of the Constitution of the State of Illinois, Smith-Hurd Stats.; that this section provides that no act can embrace more than one subject which shall be expressed in its title; that said section 42-1 is void in so far as it purports to limit her right of action under section 1 of said Injuries Act to wilful and wanton conduct. Paragraph 6 of the amended reply, which was amended at the time the court passed on the motion for a new trial, read as follows: ‘That said Section 58-A of the Motor Vehicle Act is unconstitutional in that it attempts to deprive the plaintiff of the rights given to her by virtue of the Fourteenth Amendment to the Constitution of the United States and Section 2 of Article 2 of the Constitution of the State of Illinois.’ The amended reply originally filed did not refer to section 19 of article II of the Constitution, otherwise the language was the same.

A motion was filed by defendant under date of October 18, 1940, to strike the reply of the plaintiff, which motion was made before the reply was amended to include section 19 of article II. On June 23, 1941, an order was entered denying the motion to strike the amended reply of the plaintiff as to paragraphs 1 to 2, inclusive, and sustaining the motion to strike paragraphs 3 to 6, inclusive. The paragraphs stricken were those referring to the constitutional questions as presented.

At the close of plaintiff's case the court sustained the motion by the defendant instructing the jury to find that plaintiff could not recover under paragraphs 6(a), 6(b), and 6(c) of plaintiff's complaint, and on the motion of the defendant, at the close of all the evidence, to direct a verdict as to paragraphs 5(a), 5(b), and 5(c) of the complaint, the court reserved its ruling. The jury answering special interrogatories that the deceased was a guest and not a passenger for hire, returned a verdict finding the defendant ‘not guilty.’ Motion for a new trial was made which was overruled by the court and judgment entered, from which this appeal followed.

It is urged by the defendant that there is no constitutional question involved and that the appeal should be transferred to the Appellate Court for the First District, and Hillmer v. Chicago Bank of Commerce, 378 Ill. 449, 38 N.E.2d 751, and Jenisek v. Riggs, 381 Ill. 290, 44 N.E.2d 902, are cited in support of such contention.

In the Jenisek case the plaintiff there, filed a motion for leave to amend his motion for a new trial by adding a nineteenth paragraph assailing the constitutionality of section 51(a) of the Uniform Traffic Act on the ground that it transcended section 1 of the Fourteenth Amendment of the Federal Constitution and section 2 of article II of our Constitution. In denying this motion to amend, the trial court specifically pointed out that the proposed amendment attempted to present a question as to the validity of the statute not raised in the pleadings, not argued, not set forth in any instructions, nor in the motion for a new trial and not asserted at any time during the trial.

In the instant case the question of the constitutionality of section 42-1 was presented in the pleadings. The motion of defendant, to strike the reply of plaintiff to defendant's answer, recognized that the unconstitutionality of section 42-1 was presented by the reply, and requested to have the same stricken.

Plaintiff may plead as many ‘matters in reply’ as she may have, but each must be separately designated and numbered. Ill.Rev.Stat.1941, chap. 110, par. 167, sec. 43. The motion to strike as to paragraphs 3 to 6, inclusive, which included questions as to the constitutionality of section 42-1 was allowed and evidently the court considered such questions as raised. It was set out in the motion for a new trial particularly that the court erred in striking paragraphs 3 to 6 of the amended reply of plaintiff to the answer of the defendant. Before this court will assume jurisdiction of an appeal on the ground that a constitutional question is involved it must appear from the record that a fairly debatable constitutional question was urged in the trial court. The ruling on it must be preserved in the record for review and error must be assigned upon it in this court. Jenisek v. Riggs, 381 Ill. 290, 44 N.E.2d 902;Hillmer v. Chicago Bank of Commerce, 378 Ill. 449, 38 N.E.2d 751. That such fairly debatable question was urged in the trial court and the ruling preserved can hardly be questioned.

The defendant contends the appeal should be dismissed. We have examined the record, including the notice of appeal as filed, and cannot agree that plaintiff's appeal should be dismissed by reason of the order not being final or appealable.

We are next confronted with the crux of this case: The validity of section 42-1 of the Motor Vehicle Act as amended, known as the ‘guest statute,’ which provides in brief that a gratuitous guest passenger, if while riding with someone else, is injured or killed, or has his property damaged, no right of action exists against the driver of the vehicle, unless the driver was guilty of wilful and wanton misconduct. In this case it is urged that section 42-1 of the act is unconstitutional, being in violation of section 13 of article IV and sections 2 and 19 of article II of the Constitution of the State of Illinois and section 1 of the Fourteenth Amendment to the Constitution of the United States.

Plaintiff contends that, as she filed her cause of action under the Injuries Act, Ill.Rev.Stat.1941, chap. 70, par. 1, sec. 1, which provides a remedy and gives a right of action in cases of death by the negligence or wrongful act of another, she is to look solely to that act for her cause of action unless it could be said that section 42-1 of the Motor Vehicle Act amends the Injuries Act, and in such case it could be of no avail because it violates section 13 of article IV of the Constitution. For a correct solution of the question urged it is first necessary to determine if plaintiff has, by the Injuries Act, an absolute cause of action. We do not think under the authorities of this court it can be said the Injuries Act gives an absolute remedy. Where action is brought under the Injuries Act in death cases the plaintiff must bring himself within the conditions of the act, Bishop v. Chicago Railways Co., 303 Ill. 273, 135 N.E. 439, one of which predicates an action for death on the condition a suit could be maintained if the deceased had...