Gass v. Carducci, Gen. No. 48656

• Decision Date: 25 September 1962
• Docket Number: Gen. No. 48656
• Citation: 185 N.E.2d 285,37 Ill.App.2d 181
• Parties: Anna M. GASS and George W. Gass, Appellees, v. Marilyn CARDUCCI, Appellant.
• Court: United States Appellate Court of Illinois

Page 285

185 N.E.2d 285

37 Ill.App.2d 181

Anna M. GASS and George W. Gass, Appellees, v. Marilyn CARDUCCI, Appellant.

Gen. No. 48656.

Appellate Court of Illinois, First District, Second Division.

Sept. 25, 1962.

Rehearing Denied Oct. 18, 1962.

Querrey, Harrow, Gulanick & Kennedy, Chicago (John T. Kennedy and Corwin D. Querrey, Chicago, of counsel), for appellant.

John G. Phillips, Chicago, for appellees.

FRIEND, Justice.

Plaintiff Anna M. Gass, while riding as a passenger in an automobile driven by her daughter Marilyn Carducci, the defendant, fell from the front seat of the car and was seriously injured. Mrs. Gass brought suit for damages, and George W. Gass, her husband, joined as a plaintiff, seeking recovery for loss of consortium, association, and services, and for medical expenses incurred. The jury returned verdicts finding defendant guilty, assessing Mrs. Gass's damages in the amount of $50,000.00 and those of her husband in the amount of $7000.00. The court entered judgment on the verdicts and subsequently entered an order denying defendant's post-trial motions. Defendant, appealing from the judgment and order, raises no question as to the amount of the verdicts or judgment, but only as to alleged errors on trial of the case.

The accident occurred on September 29, 1956. Mrs. Carducci was driving her infant son Michael and her mother Mrs. Gass to a doctor's office in the Chicago Loop from the Gass home in Chicago Heights. When called as an adverse witness by plaintiffs under section 60 of the Civil Practice Act (Ill.Rev.Stat.1961, ch. 110), defendant testified that the trip to the doctor's office was necessitated by Michael's asthmatic condition, and that she had asked her mother to accompany her to the doctor's office because Michael had stayed at his grandmother's home on mumerous occasions, with the result that her mother, Mrs. Gass, was better able to relate his symptoms to the doctor than was the defendant herself. Defendant further testified that, before starting, she helped her mother into the front seat of the car, closed the door, and then went around to the driver's seat. Mrs. Gass testified that she herself locked the door by pushing the handle down.

There was competent evidence from which the jury could find that the negligence of the defendant was the proximate cause of the injury, as alleged by plaintiffs. Plaintiffs alleged that defendant, while en route to the doctor's office, made a sudden and rather quick turn to the left, the momemtum of which propelled Mrs. Gass toward the door--in defendant's own words, her mother 'flew out of the car' during the course of this turn. Plaintiffs also alleged the weakness of a spring in the locking mechanism of the front door next to which the plaintiff was seated. It was alleged that defendant knew, or in the exercise of reasonable care should have known, of this condition.

Defendant stated that she and her husband were joint owners of the car in question. She denied knowledge of any defect in the door at the time of the accident, or of the likelihood of the door to open. She did admit, however, that they had had difficulty with the door at the time they purchased the car, new, from Walton Motors, and that although they had requested Walton Motors to remedy the defect, the seller had never done so.

Defendant's husband was the manage of a cab service and employed Noble Johnston as an automobile repairman. Johnston testified that about a month before the accident defendant's husband told him that 'the door was coming open,' and asked him to repair the door lock when he had the time. It was about two weeks after the accident that Johnston was free to examine the car door. He found that the latch spring was weak and replaced it. It was opinion that this condition might have existed when the car came from the factory; in any event, this condition had existed for at least a year prior to his examination and repair.

Although defendant has on this appeal raised no issue as to Mrs. Gass's status in the car, it is clear from the complaint and the proof adduced in its support that she was a passenger and not a guest within the meaning of the Auto-Guest Statute (Ill.Rev.Stat.1961, ch. 95 1/2, § 9-201). In accompanying defendant and her child to the doctor's office for the purpose of relating the child's medical symptoms, Mrs. Gass was assisting defendant in the discharge of defendant's legal duty to care for the child. In Connett v. Winget, 374 Ill. 531, 534-535, 30 N.E.2d 1, 3 (1940), the court said that in determining whether a person is a guest within the meaning of the guest statutes in the several jurisdictions, consideration is given to the person or persons advantaged by the carriage, and continued:

'f it confers only a benefit incident to hospitality, companionship or the like, the passenger is a guest, but if the carriage tends to promote mutual interests of both the person carried and the driver, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest within the meaning of such enactments. [Citing and discussing cases.]'

In Palmer v. Miller, 310 Ill.App. 582, 35 N.E.2d 104 (1941), rev'd other grounds, 380 Ill. 256, 43 N.E.2d 973 (1942), the Appellate Court held (p. 594, 35 N.E.2d 104) that the Guest Statute did not apply to plaintiff, a nurse who had been asked to take care of defendant, who was bleeding profusely, while he was being driven to a doctor's office. Similarly, this court held in Perrine v. Charles T. Bisch & Son, 346 Ill.App. 321, 331-332, 105 N.E.2d 543 (1952), that a wife who accompanied her husband to the hospital in defendant company's ambulance was not a guest within the meaning of the Auto-Guest Statute, since her presence in the ambulance was for the purpose of assisting in caring for her husband, which tended to promote the mutual interests of the wife and the ambulance company. In an Alabama decision, Sullivan v. Davis, 263 Ala. 685, 83 So.2d 434, 59 A.L.R.2d 331 (1955), rendered under an auto-guest statute similar to our own, it was held that one who accompanies a driver with a view to assisting that driver in the discharge of his legal obligation to care for a member of the driver's family, confers a tangible benefit upon the driver such that the wilful and wanton misconduct requirements of the guest statute do not apply. The facts of the present case bring it well within the authority of these decisions.

Defendant's principal assignments of error relate to the admission into evidence of Noble Johnston's testimony. First, it is contended that Johnston's testimony as to what defendant's husband told him about the door's coming open, as well as his directions to repair it, are inadmissible hearsay evidence as against defendant, who was not present during the conversation in question. We are of the opinion that this portion of Johnston's testimony was not hearsay evidence since it was not used by plaintiff as evidence of the actual condition of the door, but as circumstantial evidence of defendant's probable knowledge of the condition of the door.

Hearsay evidence, as we understand it, consists in the testimonial use of an unsworn, out-of-court statement as proof of the fact asserted by the out-of-court declarant. Here, however, the fact asserted by Clement Carducci, the likelihood of the door to open, was, as we hold, competently proved by Johnston's direct testimony as to his actual examination of the door. In addition to proving the actual likelihood of the door to open, it was plaintiffs' burden to show that the defendant knew, or in the exercise of reasonable care should have known, of this likelihood. When an out-of-court statement is used, not as evidence of the fact asserted but as circumstantial evidence for another purpose, the hearsay rule does not apply. 6 Wigmore, Evidence § 1788 (3d ed. 1940). More particularly, Wigmore indicates in section 1789 (pp. 236-237):

'[T]he Hearsay rule interposes no obstacle to the use of * * * oral informations * * * or any other form of verbal utterances by one person, as circumstantial evidence that another person had knowledge or belief as to * * * the dangerous condition of a place or a machine * * *.' (Emphasis Wigmore's.)

With respect to circumstantial evidence of communication between husband and wife, Wigmore indicates in section 261 (2 Wigmore, pp. 82-83):

'Communication to a husband or wife is always receivable to show probable knowledge by the other (except where they are living apart or are not on good terms), because, while it is not certain that the one will tell the other, and while the probability is less upon some subjects than upon others, still there is always some probability,--which is all that can be fairly asked for admissibility.' (Emphasis Wigmore's.)

We believe that the logic of this rule applies with equal force when it is a communiciation by a spouse to a third person instead of a communication to a spouse by a third person, which is offered as circumstantial evidence of knowledge on the part of the absent spouse. Further, we think it highly probable that a husband would communicate to his wife the dangerous likelihood of the door of their family car to open. Accordin...