Foster v. Bilbruck

• Court: Appellate Court of Illinois
• Writing for the Court: REYNOLDS; ROETH, P. J., and CARROLL
• Citation: Foster v. Bilbruck, 20 Ill.App.2d 173, 155 N.E.2d 366 (Ill. App. 1959)
• Decision Date: 19 January 1959
• Docket Number: Gen. No. 10193
• Parties: Georgianna FOSTER, Administratrix of the Estate of Haron C. Foster, deceased, and Georgianna Foster, individually, Plaintiffs-Appellees, v. Oren L. BILBRUCK, Defendant-Appellant.

Page 366

155 N.E.2d 366

20 Ill.App.2d 173

Georgianna FOSTER, Administratrix of the Estate of Haron C Foster, deceased, and Georgianna Foster individually, Plaintiffs-Appellees, v. Oren L. BILBRUCK, Defendant-Appellant.

Gen. No. 10193.

Appellate Court of Illinois, Third District.

Jan. 19, 1959.

D. A. McGrady, Gillespie, John F. Gibbons, Jerseyville, for appellant.

Mondhink, Mosele & Wiseman, Alton, for appellees.

REYNOLDS, Justice.

This cause grows out of an automobile collision a short distance north of Chatham, Illinois, on Illinois Route No. 4, between a car driven by the defendant Bilbruck and one owned by one Angelo Borio, in which the plaintiff Georgianna Foster was injured and her husband Haron C. Foster was fatally injured. The decedent, Haron C. Foster and Bilbruck were married to twin sisters, and both the Fosters and Bilbruck reside at Carlinville, Illinois. In the Foster family there was the deceased Haron C. Foster, his wife Georgianna Foster, a grown daughter and one minor child, aged fifteen years, named Evelyn who was dependent upon Haron C. Foster for support. Arrangements were made between Foster and Bilbruck for Bilbruck to drive the Fosters to Springfield for Mr. Foster to get some glasses. They left Carlinville to drive to Springfield in Bilbruck's car. The weather was clear and the pavement was dry. Nothing occurred between Carlinville and Chatham, and shortly after going through Chatham, the defendant came up behind a car driven by one John Holinga. Both the Holinga car and the defendant's car ware traveling northward on said Route No. 4. The defendant kept behind the Holinga car for some distance and after coming to the top of a hill, decided to pass. There is some conflict in the evidence as to the speed Bilbruck was driving, the plaintiff Georgianna Foster testifying that he was driving at speeds of 70 and 75 miles per hour. This speed is disputed by the defendant. After reaching the crest of the hill, the defendant claims that there was a straight stretch of the highway of approximately 1,000 feet. He then started to pass the Holinga car. The defendant claims that Holinga speeded up as he started to pass, but the defendant did pass the Holinga car. It was admitted that cars were approaching from the north. The plaintiff Georgianna Foster testified that she observed the approaching cars from the north and warned the defendant, telling him that there were two cars coming, but this is disputed by the defendant. After passing the Holinga car, and in getting back into the northbound lane of the highway, the defendant got off the pavement and on to the right shoulder of the road. Apparently this threw his car out of control, and he then sideswiped an approaching Cadillac and then with his car completely out of control, his car proceeded down the road and collided head on with a Pontiac automobile driven and owned by Angelo Borio. Haron C. Foster was fatally injured and died a few days later. The testimony is conflicting as to the speed of the defendant's car in passing the Holinga car. The plaintiff testified that he was traveling at about 55 miles an hour before he attempted to pass, and that he speeded up. The witness Borio estimated the speed of the defendant's car at 60 miles per hour. The defendant testified he was traveling at about 35 miles per hour as he pulled out to pass, but he was not positive as to his speed at the time of the collision. From the evidence it appears there is a fairly straight stretch of pavement from the top of the hill where the defendant started to pass, to a point where the accident occurred. There is a 'No Passing' sign about 500 feet from the top of the hill, and about 700 feet north of this 'No Passing' sign, the road goes into a curve. Even the straight stretch claimed by the defendant is disputed by Thomas Moody, the State Highway Policeman, and others, they claiming it to be a long continuing curve. The defendant claims he passed on this straight section, and that the accident occurred at the beginning of the curve.

From the testimony of the witnesses Borio and Holinga, it appears, that after coming back on the pavement and sideswiping the Cadillac, the defendant's car then crossed the black line and into the southbound traffic lane and that at the time of the impact with the Borio car, the defendant's car was off the pavement and on the shoulder on the west side of the highway.

The defendant was given an arrest ticket by the State Highway Policeman Moody, for passing on a curve and appeared before a justice of the peace, pleaded guilty and was fined.

The plaintiff Georgianna Foster was appointed administratrix of her deceased husband's estate and in her name and as such administratrix brought suit against the defendant Bilbruck in the Circuit Court of Macoupin County, claiming damages in four counts, Count I being an administrator's complaint based on negligence, Count II, an administrator's complaint charging the defendant with wilful and wanton misconduct, Count III a negligence complaint by Georgianna Foster, and Count IV, a complaint by Georgianna Foster, charging the defendant with wilful and wanton misconduct. Counts I, III and IV were withdrawn by the plaintiff before the cause was submitted to a jury and only the issues of Count II were submitted to the jury. The jury returned a verdict of $8,500 for the plaintiff and the court entered judgment upon the verdict. From that judgment the defendant appeals to this court.

The defendant contends that the deceased Haron Foster and his wife Georgianna Foster were guests and that there was not sufficient proof of wilful and wanton misconduct on the part of the defendant to sustain the verdict, that the verdict in against the weight of the evidence, is contrary to law, and that the trial court should have directed a verdict in favor of the defendant. Also the defendant complains of the admission of certain photographs of the road at and near the scene of the accident.

As to the status of the plaintiff and decedent Haron Foster, it seems clear that they were guests and therefore under the Guest Statute. The defendant was using his own automobile to take them to Springfield to get some eye glasses for the decedent. While there is some testimony that the decedent Haron Foster and the defendant had shared the expenses of other trips, there is no evidence here of sharing expenses and it appears that Foster and his wife were guests on this trip. Accordingly, under the guest statute, the defendant is only liable to them in damage for the death of Haron Forster, or injury to the plaintiff, Georgianna Foster, for wilful and wanton misconduct.

Each case must rest upon its own facts and while there can be applied to all cases the basic concept of what constitutes wilful and wanton misconduct, such conduct is a matter of degree resting upon the facts in each case. But our courts in Illinois have in many cases defined what action or failure on the part of a defendant will be considered as wilful and wanton misconduct, and we must apply that basic concept to this cause. In the case of Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311, 313, that court in defining wilful and wanton misconduct said: 'Wilful and wanton misconduct has been defined in myriads of cases each one reiterating or embellishing the phraseology of its predecessors. Streeter v. Humrichouse, 357 Ill. 234, 191 N.E. 684; Bartolucci v. Falleti, 382 Ill. 168, 46 N.E.2d 980; Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293; Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435; Myers v. Krajefska, 8 Ill.2d 322, 328, 134 N.E.2d 277. One often quoted definition is that set forth in Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, at page 583, 69 N.E.2d 293, at page 300: 'A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure after knowledge of impending danger to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.' In the recent case of Myers v. Krajefska, 8 Ill.2d 322, 134 N.E.2d 277, this court refused to overrule that definition. The court noted that although there are some variations in the phraseology of the defendants of wilful and wanton misconduct in the cases, the basic concept as applied in the case law is the same, and since such conduct is usually a matter of degree, no hard-and-thin-line definition could be made.'

The defendant contends that his motions for a directed verdict for the defendant at the close of the plaintiff's evidence and at the close of all the evidence should have been granted by the trial court. With this contention we cannot agree. A motion for a directed verdict, as said in the case of Bartolucci v. Falleti, 382 Ill. 168, 46 N.E.2d 980, is in the nature of a demurrer to the evidence. In considering such a motion, the evidence must be considered in its aspects most favorable to the party adverse to the motion. Bartolucci v. Falleti, 382 Ill. 168, 46 N.E.2d 980; Shutan v. Bloomenthal, 371 Ill. 244, 20 N.E.2d 570; Blumb v. Getz, 366 Ill. 273, 8 N.E.2d 620. As said in the Bartolucci v. Falleti case, 382 Ill. at page 173, 46 N.E.2d at page 983, 'it becomes the duty of this court to examine the record to determine whether there is any evidence, which taken, with its intendments most...