Kamholtz v. Stepp

Decision Date12 July 1961
Docket NumberGen. No. 11505
Citation176 N.E.2d 388,31 Ill.App.2d 357
PartiesJoann KAMHOLTZ, Plaintiff-Appellant, v. Robert Eugene STEPP, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Berry & Simmons, Rockford, for appellant.

Maynard & Maynard, Rockford, for appellee.

CROW, Justice.

The plaintiff-appellant, Joann Kamholtz, brought suit for damages for personal injuries incurred August 12, 1956 while riding as a guest passenger in a car driven by the defendant-appellee, Robert Eugene Stepp. The plaintiff charged in her complaint, as far as material that Alpine Road, in Winnebago County, was a black topped road running in a generally northwesterly direction; Forest Hills Road was a cement highway running in a generally northeasterly direction and intersected Alpine Road at an angle north of Rockford; Forest Hills Road was a preferred highway, there was a stop sign at the intersection requiring northbound traffic on Alpine Road to stop, and Alpine Road was a dead-end road at that intersection; on August 12, 1956 at 1:25 a. m. the defendant was driving his automobile on Alpine Road in a northwesterly direction and approached that intersection; the plaintiff was a guest passenger in the automobile; the plaintiff was free of any contributory wilful or wanton misconduct which caused her injury. The complaint then alleges:

'7. That the defendant, Robert Eugene Stepp was then and there guilty of one or more of the following acts of wilful, wanton and malicious misconduct in the operation of his automobile, to-wit:

'a. That the defendant did then and there wilfully, wantonly and maliciously drive his automobile along said highway at a dangerously high and excessive rate of speed.

'b. That the defendant then and there wilfully, wantonly and maliciously omitted to keep his said automobile under proper control.

'c. That the defendant then and there wantonly, wilfully and maliciously omitted to keep a proper look out along the highway in front of said automobile so as to discover and observe lawful and proper traffic controls and signs placed along said road.

'd. That the defendant then and there wilfully, wantonly and maliciously drove and operated his automobile through a stop sign and off the end of the dead-end road, although he knew that said stop sign existed and that said dead-end road existed and that he was approaching said location.

'e. That the defendant, wilfully, wantonly and maliciously drove his automobile into a place of danger, which in the exercise of due care and caution he should have discovered.

'8. That as a result of one or more of the foregoing wilful, wanton and malicious acts the defendant's automobile did go off the highway at the aforesaid intersection, through a ditch, through a fence, a mailbox and into the adjoining persons' yard, causing the plaintiff to be thrown from the automobile and severely injured.'

No answer to the complaint had been filed by the defendant.

A discovery deposition was taken of the plaintiff on July 9, 1960. The defendant thereafter filed a motion for summary judgment based upon the testimony of the plaintiff given in that deposition, the transcript of which was attached as an exhibit to the motion, upon the theory that the testimony of the plaintiff in the deposition does not support the plaintiff's allegations of the defendant's wilful and wanton misconduct. Counteraffidavits by the plaintiff were filed to the effect that it is her opinion that the defendant was driving in a wilful and wanton manner at the time of the accident, that he drove without maintaining a proper lookout for traffic and traffic signs, that a protest about his driving was made by the plaintiff 15 minutes before the accident, that she was a passenger in the automobile at the time and place concerned, that the defendant was driving at the time at more than 55 miles per hour, that she asked him to drive at a reduced speed and in a more careful manner 15 to 20 minutes prior to the accident, and that the defendant was familiar with the area, knew that Alpine Road dead ended at the point of the accident, and knew a stop sign was posted at that point for traffic going northwesterly on Alpine Road. The Court granted the defendant's motion for summary judgment and entered a final judgment for the defendant. The plaintiff appeals.

The parts of the testimony of the plaintiff in the discovery deposition set out in the defendant's motion for summary judgment are as follows:

'2. That on July 9, 1960, the Discovery Deposition was taken by the defendant of the plaintiff, under oath, in which deposition the plaintiff testified in part as follows, on pages 15 and 16 thereof, to wit:

"Q. At any time after you turned onto Alpine Road from Route 20, to the time the accident occurred, did you complain of his driving at all up to the time the accident occurred? A. No.

"Q. Was there anything in the way he was driving the car that gave you any concern about danger? A. No.

"Q. Did you feel as he was driving on Route 20 to where the accident occurred that he was driving reasonably and carefully?

"Mr. Healy: I object. Don't answer.

"Mr. Maynard: You may answer the question.

"Mr. Healy: I instruct her not to answer.

"Mr. Maynard: Q. Did he do anything between the time he turned from Route 20 on Alpine Road to the time the accident occurred, did he do anything in the driving of the car that gave you any concern for your own safety? A. No."

'And further on pages 16 and 17 of said deposition:

"Mr. Maynard: Q. Well, do you have an opinion, Miss Kamholtz, as to whether or not from what you knew of Mr. Stepp's driving just prior to the accident, whether or not he was driving carefully or unreasonably? A. Prior to the Accident?

"Q. Yes. A. Reasonably."

Other parts of the testimony of the plaintiff in the discovery deposition were that she had never been on the road where the accident happened before, she was not familiar with it, the last thing she remembers before being thrown out of the car was reaching over to tune the radio and talking to the defendant, after the accident she was sitting in a driveway next to a nearby house about 20 feet from the road, the defendant had been driving at least 55 miles per hour, maybe more, she was sitting in the front right hand side by the right door, looking forward, the defendant had both hands on the wheel, she did not see the stop sign at the intersection of Alpine Road and Forest Hills Road, the headlights were on, she did not notice whether the brakes were applied, and she recalled saying in a statement two weeks after the accident that the defendant was driving carefully and at no time was she afraid of his driving and he was driving in a sensible manner.

The defendant contends: (1) that the plaintiff, under oath, in her discovery deposition has conclusively, by admissions, refuted her unsworn allegations in her complaint that the defendant wilfully and wantonly operated his automobile and wilfully and wantonly injured her, by testifying that prior to and at the time of the occurrance in question the defendant was driving 'reasonably', 'sensibly', 'carefully', and that she did not complain of his driving or admonish him, and that there was nothing about his driving that gave her concern about danger, and that he did nothing in the manner in which he drove to give her concern for her own safety, and that by reason thereof there is no remaining question of ultimate fact on wilful and wanton misconduct for the jury, and that summary judgment is the proper remedy; and (2) that the plaintiff was guilty of the same degree or kind of misconduct, if any, as the defendant, and cannot recover, as a matter of law, from the admitted facts.

The plaintiff asserts that the defendant's motion was insufficient because it did not rebut all the acts of wilful and wanton conduct set forth in the plaintiff's complaint, the statements in the deposition do not amount to contributory wilful and wanton misconduct on her part as a matter of law, and the plaintiff's admissions in the deposition were rebutted by the counter-affidavits, and controverted questions of fact were left for a jury's determination.

The Guest Statute, Ch. 95 1/2, Ill.Rev.Stats., 1955, par. 58a, provided, in substance, so far as material, that no person riding in a motor vehicle as a guest without payment for such ride shall have a cause of action for damages against the driver or operator of such motor vehicle for injury in case of accident unless such accident shall have been caused by the wilful and wanton misconduct of the driver and unless such wilful and wanton misconduct contributed to the injury.

In Stephens et al. v. Weigel, 1948, 336 Ill.App. 36, 82 N.E.2d 697, 699, the Court said:

'Although no specific rule can be promulgated to determine categorically what constitutes wilful and wanton misconduct * * * it is generally established that defendant must exhibit a lack of regard for the safety of others, and a conscious indifference to the consequences that might follow from his acts. * * * Violation of a statutory speed limit does not per se constitute wilful and wanton misconduct, for in every case the attending circumstances must be taken into consideration. * * * It is not necessary, however, that defendant intended that plaintiff should be injured by reason of his acts, nor is it necessary that defendant actually know the dangers to which plaintiff is exposed. It is sufficient if he has notice which would alert a reasonably prudent man, and he does not take reasonable precautions under the circumstances.'

And see: Hering v. Hilton, 1958, 12 Ill.2d 559, 147 N.E.2d 311; Signa v. Alluri et al., 1953, 351 Ill.App. 11, 113 N.E.2d 475; McCullough et al. v. Orcutt, 1957, 14 Ill.App.2d 513, 145 N.E.2d 109.

And the following from Schneiderman v. Interstate Transit Lines, Inc., 1946, 394 Ill. 569, 69 N.E.2d 293, 300, has been frequently referred to in...

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    ...that there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law. Kamholtz v. Stepp, 31 Ill.App.2d 357, 176 N.E.2d 388. The purpose of a summary judgment procedure is not to try an issue of fact but rather to determine if one exists. J. J......
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    ...proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue. Kamholtz v. Stepp, 31 Ill.App.2d 357, 367, 368, 176 N.E.2d 388 (1961). There is no genuine issue with reference to the fact that on the date of the accident, Robert was granted permi......
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