Graham v. Page , 13945.

• Decision Date: 08 December 1921
• Docket Number: No. 13945.,13945.
• Citation: 132 N.E. 817,300 Ill. 40
• Parties: GRAHAM v. PAGE.
• Court: Illinois Supreme Court

300 Ill. 40

132 N.E. 817

GRAHAM

v.PAGE.

No. 13945.

Supreme Court of Illinois.

Oct. 22, 1921.

Rehearing Denied Dec. 8, 1921.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Jacob H. Hopkins, Judge.

Action by John Graham, by his next friend, against J. H. Page and Marva Page. From a judgment for plaintiff against defendant J. H. Page he appealed to the Appellate Court for the First District, which reversed without remanding the case (220 Ill. App. 431), and plaintiff brings certiorari.

Judgment of Appellate Court reversed, and judgment of superior court affirmed.C. Helmer Johnson, of Chicago, for plaintiff in error.

Burt A. Crowe, of Chicago (Roy A. Nutt, of Chicago, of counsel), for defendant in error.

FARMER, J.

John Graham, a minor, by his next friend, sued J. H. Page and Marva Page to recover damages for personal injuries sustained. The trial of the case resulted in a judgment for plaintiff against J. H. Page for $3,500, from which judgment defendant prosecuted an appeal to the Appellate Court for the First District. That court reversed the judgment without remanding the case. On the petition of plaintiff this court granted a writ of certiorari, and the record is brought before us for review.

The injuries to plaintiff occurred September 11, 1918, and resulted from the collision of an automobile driven by Marva Page and a bicycle on which plaintiff was riding. J. H. Page was the father of Marva, who was driving her father's automobile at the time the accident happened. She was then 16 years old and resided with her father, whose family consisted of a wife and the one daughter. To the declaration both defendants pleaded the general issue and defendant J. H. Page filed two special pleas: First, that he was not possessed of, operating, controlling, driving, or using the automobile when the accident occurred; second, that at the time and place mentioned in the declaration the automobile was not being used, controlled, or driven by him or by his agent or servant. At the close of the testimony Marva Page was dismissed from the case.

The view of the Appellate Court was, as shown by its opinion, that the case is controlled by Arkin v. Page, 287 Ill. 420,123 N. E. 30, 5 A. L. R. 216, and defendant so contends here, while plaintiff insists that the facts proven on the trial in this case so distinguish it from Arkin v. Page, supra, that that case is not controlling.

At the time of plaintiff's injury he was returning to a grocery store where he was employed. He had gone from the store to the residence of defendant to deliver a sack of flour which some member of defendant's family had ordered. In delivering the flour plaintiff used an alley running east and west in the rear of defendant's residence and connecting with Blackstone avenue, a north and south street east of defendant's residence. After delivering the flour plaintiff mounted his bicycle and rode east out of the alley into Blackstone avenue, where he collided with the automobile driven by Marva Page and sustained the injuries complained of. A young lady friend of Marva was in the car with her, but no member of her family. Marva Page testified she used the car at the time in question to go to a shoe shop to get a pair of her shoes she had left there to be repaired. Evidence on behalf of plaintiff tended to prove that as he approached Blackstone avenue from the west the car, which was going north, was on the west side of the avenue and appeared about to turn into the alley plaintiff was coming out of. The driver of the car gave no warning of her approach and the view of the street from the alley was obstructed by a building on the corner on the south side of the alley. Plaintiff's evidence tended to show he was riding slowly, about 5 miles an hour, and the automobile was being driven at a speed of 15 or 20 miles an hour, and on the west side of the street instead of the east side, as required by ordinance. Plaintiff's proof as to the speed of the automobile and the side of the street it was being driven on was disputed by proof for defendant.

It cannot be denied plaintiff's proof tended to show the negligence of the driver of the car was the proximate cause of the injury. The question then is presented whether the law imposes a liability on defendant for the damages, sustained by plaintiff. This question, under somewhat varying facts, has been the subject of adjudication in many of our states, and the decisions are not in harmony. Those holdingthe owner of an automobile liable for injuries caused by the negligent driving of car by the child of the owner base the liability on the ground that the child was the servant or agent of the owner, and have sustained liability where the car was purchased and kept solely for the pleasure of the owner's family and a member of the family was driving it for his own pleasure when the injury occurred. The courts taking that view say the car was being used by authority of the owner for the purpose for which it was procured and kept, namely, the comfort, pleasure, and entertainment of the family, which it is the duty of the father to provide for his family. Many of the cases holding that view will be found cited in the dissenting opinion in Arkin v. Page, supra, and need not be again cited. So, also, many of the cases holding the opposite view will be found cited in the court's opinionin that case. The facts in that case did not present the question as it is presented here. In this case defendant's daughter was not merely driving the car for pleasure...