Drews v. Mason

• Citation: 172 N.E.2d 383,29 Ill.App.2d 269
• Decision Date: 21 February 1961
• Docket Number: Gen. No. 10323
• Parties: Marion F. DREWS, Plaintiff-Appellant, v. Helen L. MASON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 383

172 N.E.2d 383

29 Ill.App.2d 269

Marion F. DREWS, Plaintiff-Appellant, v. Helen L. MASON, Defendant-Appellee.

Gen. No. 10323.

Appellate Court of Illinois, Third District.

Feb. 21, 1961.

Unger, Litak & Groppi, Danville, for appellant.

Sebat, Swanson, Banks & Jones, Danville, Ralph J. Swanson, Danville, of counsel, for appellee.

REYNOLDS, Justice.

Plaintiff slipped or stumbled over a wooden clothes pole or rod lying on the floor of her daughter's house, and broke the bones in her right wrist. She filed suit against her daughter for personal injuries claiming negligence. The cause was tried before a jury and the jury returned a verdict for the plaintiff in the amount of $1,500. This verdict was set aside and judgment notwithstanding the verdict entered for the defendant, the trial court holding in a memorandum opinion that the plaintiff was a licensee and not an invitee, and that the defendant could only be liable for concealed traps or wilful force or wanton intentional or reckless action. From that judgment the plaintiff appeals.

Prior to the date the plaintiff was injured, the mother and daughter lived three doors apart in Danville, Illinois. The home of the daughter, Helen L. Mason, was severely damaged by fire on October 27, 1958, the fire not only damaging the home, but also the contents. The daughter and her husband, Albert Mason, after the fire, went to live temporarily with the mother, Marion F. Drews, and were living there the day of the accident. After the fire, and after most of the fire damaged debris in the Mason home had been taken out, the Masons were re-decorating their home with the help of the plaintiff, Medford E. Williams, the husband of another daughter of the plaintiff, Robert Drews, a son of the plaintiff and brother of the defendant, other relatives and neighbors. On the day plaintiff was injured, November 2, 1958, the family had had breakfast at the Drews home and Albert Mason and Helen L. Mason had left to go to their home to continue repairing and clearing up the fire damage. As the daughter left the Drews home, she said to her mother, the plaintiff, 'I suppose you'll be down a little later, won't you, Mother?' and the plaintiff replied, 'Yes, I'll be down after I do a few chores at home here.' The defendant Helen L. Mason left the Drews home at about 8:30 a.m. The plaintiff went to the Mason home at about 10:15 a.m. and walked into the bedroom where Mr. Mason, Mrs. Mason, Robert Drews and Mr. Williams were working. Mrs. Mason was washing a round wooded clothes pole, and upon being asked by her husband to get them some coffee, left for the Drews home to make coffee, leaving Mrs. Drews, Mr. Mason, Robert Drews and Mr. Williams in the Mason home. Mrs. Mason has no definite recollection as to what she did with the clothes pole she was washing, but testified she didn't think she leaned it against the wall, but probably dropped it right there where she was washing it. After Mrs. Mason had left, Mrs. Drews stepped on or stumbled on the pole, fell and injured her wrist.

When Mrs. Drews appeared at the Mason home that morning, she was dressed in an old house dress, flat heeled shoes and a short top coat. From the date of the fire to the date of the injury, Mrs. Drews had been at the Mason home almost constantly, helping them to throw out articles not worth saving, washing walls and scrubbing floors. The Masons testified that it was not a matter of asking Mrs. Drews to do something, but that she would see something that needed to be done and do it. Both Albert Mason and his wife Helen L. Mason testified that at no time had they directly requested the plaintiff to work at the defendant's house.

The original complaint claimed the plaintiff was an invited guest, but this was amended to an invited 'person'. During the trial, Albert Mason the son-in-law of the plaintiff, named as defendant, was dismissed from the case, and the verdict of the jury was for the plaintiff against her daughter Helen L. Mason. The injuries to the plaintiff were not disputed and no question on the pleadings is raised in the appeal, except as to the posttrial motion for a new trial and that will be discussed later in this opinion. The issue before this court on the appeal is the status of the plaintiff at the time of her injury. If she was a licensee or a guest, the defendant would only be liable for wilful and wanton negligence. If she was an invitee, then the defendant would be liable for ordinary negligence. The trial court by its judgment notwithstanding the verdict held her status as that of a licenses or guest. The plaintiff in her appeal contends her status was a question of fact for the jury.

The law is well settled that a trial court has no right to direct a verdict, or to enter a judgment notwithstanding the verdict, if there is any evidence, together with all reasonable inferences to be drawn therefrom, which would justify submission of the case to the jury. Friesland v. City of Litchfield, 24 Ill.App.2d 390, 395, 164 N.E.2d 606; Pantlen v. Gottschalk, 21 Ill.App.2d 163, 174, 157 N.E.2d 548; Wills v. Paul, 24 Ill.App.2d 417, 420, 164 N.E.2d 631. Even where the facts are admitted or undisputed but where a difference of opinion as to the inference that may legitimately be drawn from them exists, it is primarily for the jury to draw the inference. Denny v. Goldblatt Bros., Inc., 298 Ill.App. 325, 18 N.E.2d 555; Pantlen v. Gottschalk, 21 Ill.App.2d 163, 174, 157 N.E.2d 548. And a verdict may not be set aside merely because the jury could have drawn different inferences or because judges may feel, if they did, that other conclusions than the one drawn by the jury would be more reasonable. Lindroth v. Walgreen Co., 407 Ill. 121, 94 N.E.2d 847; Cloudman v. Beffa, 7 Ill.App.2d 276, 284, 129 N.E.2d 286. While each of the cases cited present different questions, they all coincide in the rule that the trial court has no right to enter a judgment notwithstanding the verdict of the jury, except upon uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense. Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665; Friesland v. City of Litchfield, 24 Ill.App.2d 390, 395, 164 N.E.2d 606. As said in the Merlo v. Public Service Co. case, 381 Ill. at page 311, 45 N.E.2d at page 672: 'If there is in the record evidence which, standing alone, tends to prove the material allegations of the complaint, a motion for a directed verdict, or for judgment notwithstanding the verdict, should be denied, even though upon the entire record the evidence may preponderate against the party in opposition to such motion, so that a verdict in his favor could not stand when tested by a motion for a new trial.' This rule is repeated in a recent decision, Stilfield v. Iowa-Illinois Gas & Electric Co., 25 Ill.App.2d 478, at page 482, 167 N.E.2d 295, 296, where the court passed on the propriety of the trial court granting the defendant's motion for judgment notwithstanding the verdict. The court in that case said: 'The applicable principles in passing upon a motion for judgment n. o. v. have been stated innumerable times. This motion presents only a question of law as to whether, when all the evidence is considered, together with all reasonable inferences from it, in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove any necessary element of the plaintiff's case. If there is any evidence tending to sustain every element of the plaintiff's case necessary to be proved to sustain the cause of action, it is immaterial upon which side the evidence is introduced. No contradictory evidence or other evidence of any kind or character will in such case justify a judgment n. o. v., except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense, Lindroth v. Walgreen Company, 407 Ill. 121, 130, 94 N.E.2d 847; Merlo v. Public Service Company of Northern Illinois, 381 Ill. 300, 311, 45 N.E.2d 665; Marquardt v. Cernocky, 18 Ill.App.2d 135, 138, 151 N.E.2d 109, 67 A.L.R.2d 956; King v. Mid-State Freight Lines, 6 Ill.App.2d 159, 162, 126 N.E.2d 868.'

In applying the rule so announced, we turn our consideration to an analysis of the evidence in all its aspects most favorable to the plaintiff. It was testified by the defendant's husband that he had never asked his mother-in-law, the plaintiff to come to his house to work, and that he had never heard his wife ask her mother to come to work. That there was no such thing as to have to ask the plaintiff to do something, that if she saw it and it needed to be done she went ahead and did it. Mrs. Mason, the defendant testified that from the date of the fire to the date of the accident, her mother was there at her home, constantly helping them clean up and renovate the burned home. Mrs. Mason testified that she never came right out and asked her mother to help. The language used in the conversation between the daughter and her mother on the date of the accident, when she asked her mother if she was coming down to the Mason house, differs somewhat as to the reply of the mother, but the daughter did ask her mother if she was coming to her...