Connett v. Winget

• Decision Date: 04 December 1940
• Docket Number: No. 25639.,25639.
• Citation: Connett v. Winget, 374 Ill. 531, 30 N.E.2d 1 (Ill. 1940)
• Parties: CONNETT v. WINGET.
• Court: Illinois Supreme Court

374 Ill. 531

30 N.E.2d 1

CONNETT

v.WINGET.

No. 25639.

Supreme Court of Illinois.

Oct. 11, 1940.

As Modified on Denial of Rehearing Dec. 4, 1940.

Action by James Connett against Winfield S. Winget for personal injuries.From a judgment of the Appellate Court, 303 Ill.App. 227, 25 N.E.2d 116, reversing a judgment for plaintiff without remand, plaintiff appeals.

Reversed and remanded, with directions.Appeal from Appellate Court, Second District, on appeal from Circuit Court, Peoria County; Joseph E. Daily, Judge.

Knoblock & Sloan, of Peoria (John F. Sloan, Jr., of Peoria, of counsel), for appellant.

Clarence W. Heyl, of Peoria, for appellee.

GUNN, Justice.

The Appellate Court for the Second District reversed, without remanding, a judgment obtained in the circuit court of Peoria county by appellant, James Connett, against appellee, Winfield S. Winget, and a petition for appeal to this court has been allowed.

Plaintiff's complaint alleged he was riding in the automobile of defendant as a passenger at which time plaintiff and defendant were upon an errand of business, and that during the trip defendant so negligently operated the automobile that plaintiff, while in the exercise of due care, was injured.Defendant denied the acts of nebligence, and later amended his answer by alleging plaintiff was a guest as defined by the statute(Ill.Rev.Stat.1939, chap. 95 1/2, par. 58a), not paying for said ride.No reply was made to this amendment.The case was tried before a jury and resulted in a verdict for plaintiff.Motions to direct a verdict for the defendant and for judgment notwithstanding the verdict and for a new trial, were made and denied.

Plaintiff owned a house and lot in Peoria and defendant was a real estate broker.Defendant called plaintiff for the purpose of taking him some distance into the country and showing him a property which was for sale or trade.Accompanying them was another broker by the name of Bartholomew who knew the location of the property and had it listed for sale.On this trip plaintiff was injured while defendant was driving the car.The testimony of the defendant tends to show his purpose in taking the plaintiff out to view the property was for the purpose of making an exchange, and that he had plaintiff's property listed for sale or trade.Plaintiff denied the listing, although later on he admitted he might have listed the property and failed to recall it.Defendant claimed he had talked with plaintiff about an exchange of his property during the last two months, and had advertised it for sale.

The Appellate Court held the denial by the plaintiff that the defendant had his property for sale was conclusive against the parties being on a business errand, and, therefore, the plaintiff was necessarily a guest, which would not permit him to recover unless wilful or wanton misconduct was alleged and proved.In this respect the Appellate Court was in error.The effect of this ruling was to make the relationship of guest or otherwise depend, as a matter of law, upon one isolated fact.There was other evidence in the case on the question, and before the Appellate Court could say plaintiff was necessarily a guest within the statute, as a matter of law, all the evidence should have been considered.In Sycamore Preserve Works v. Chicago & Northwestern Railway Co., 366 Ill. 11, 7 N.E.2d 740, 744, 111 A.L.R. 1133, this court said: ‘But where the effect of the Appellate Court's holding is that there is not evidence sufficient, when considered alone, to sustain the charge * * * of the complaint or declaration, it becomes the duty of this court to examine the record to determine whether there is any evidence, which, taken with its intendments most favorable to the plaintiff, tends to prove the charge of the declaration.’

The Appellate Court regarded plaintiff's statement that he had not listed the property and did not expect to pay a broker's commission as conclusive upon the question of his being a guest.We are of the opinion that this was not the sole test.The automobile belonged to defendant.Without expressing any opinion as to the weight of the evidence or the ultimate facts established, the defendant's testimony tended to show that he hoped to interest plaintiff in the property being shown and to bring about an exchange for plaintiff's property; that he took the plaintiff with him in his automobile upon this expectation; that he did not invite plaintiff to ride as a mere matterof hospitality, but in the line of his business.The plaintiff may not have intended to make an exchange or to pay a broker's commission, but through salesmanship upon the part of the broker he might nevertheless have been persuaded to make a deal.It is clear the intention of the passenger, alone, does not determine whether he becomes a guest, since the invitation and the purpose of the ride may originate wholly with the owner of the automobile.

In determining whether a person is a guest within the...