Madison v. Wigal

• Decision Date: 24 September 1958
• Docket Number: Gen. No. 11168
• Citation: 153 N.E.2d 90,18 Ill.App.2d 564
• Parties: William MADISON and Peggy Madison, Plaintiffs-Appellees, v. James A. WIGAL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 90

153 N.E.2d 90

18 Ill.App.2d 564

William MADISON and Peggy Madison, Plaintiffs-Appellees, v. James A. WIGAL, Defendant-Appellant.

Gen. No. 11168.

Appellate Court of Illinois, Second District, Second Division.

Sept. 24, 1958.

Rehearing Denied Oct. 9, 1958.

Schoede, Schoede, & Kavensky, Rock Island, for appellant.

Eagle & Eagle, Rock Island, for appellees.

WRIGHT, Justice.

This is an action instituted in the Circuit Court of Rock Island County, Illinois, by William Madison and Peggy Madison, against James Wigal to recover damages to their automobile and for their personal injuries occasioned by the alleged negligence and wilful and wanton misconduct of the defendant, James Wigal, in driving his automobile. The jury returned a general verdict for the plaintiff, William Madison, in the sum of $6,000, and a general verdict for the plaintiff, Peggy Madison, in the sum of $9,000, upon which the court entered judgment from which judgment this appeal is taken.

The complaint consists of four counts. Count I is based on negligence and prays for judgment in the sum of $5,000 for Madison's car and personal injuries. Count II is based on wilful and wanton misconduct and prays judgment for $5,000 for William Madison's car and personal injuries and $2,500 punitive damages. Count III is based on negligence and prays judgment in the sum of $10,000 for Peggy Madison for personal injuries. Count IV is based on wilful and wanton misconduct and prays judgment for $10,000 for Peggy Madison for personal injuries and $5,000 punitive damages.

The collision occurred on March 3, 1957, at 6:00 o'clock P.M., on Route 67, a four lane highway, running between Rock Island and Milan, Illinois. Route 67 is a four lane highway, straight and level with a double yellow line down the center. It was dark, but the weather was clear and the pavement dry. Plaintiff, William Madison, was driving his automobile in a southerly direction and his wife, Peggy Madison, was riding in the front seat next to him. Plaintiff was traveling 30 to 35 miles per hour, in the inside lane of traffic. The defendant was driving his automobile in a northerly direction at approximately 50 miles per hour. Plaintiffs contend that the defendant crossed over the center line into their lane of traffic, colliding practically headon. The defendant testified that at the time of the collision, his car was on the wrong side of the highway but he claimed that the plaintiffs' automobile was also over the center line in his lane. The left front of both vehicles collided. Three State Patrolmen arrived at the scene shortly after the collision and they all testified that the debris and marks on the pavement indicated that the collision occurred in plaintiffs' lane of traffic. Both plaintiffs, plaintiffs' doctor and one State Police Officer, testified that defendant was in an intoxicated condition.

Defendant and one other witness testified that he was not intoxicated and a bartender, who had served the defendant beer prior to the collision, testified the defendant was not intoxicated. The defendant testified that on the morning of the accident that he had two cans of beer at home. That afternoon he went to the Bringer Inn Tavern and had two more beers. He testified that he next went to the Village Tap Tavern and walked through that tavern without having anything to drink. He then went to the Sunset Tavern and had two more beers. The bartender at the Sunset Tavern testified that he was in the tavern at approximately 4:00 or 5:00 o'clock P.M., and that when he left the tavern he was not intoxicated and that he was in 'good condition.'

As a result of the collision, plaintiffs were hospitalized for a period of five days. Plaintiff, William Madison, suffered shock, a broken nose, lacerations to his knee, pulled ligaments and muscles to his hip and a bruised left hand and elbow. He missed six weeks work. He testified that his hip still bothers him at times. Plaintiff, Peggy Madison, suffered shock, a dislocated left ankle, a fracture of the left fibula, and a complete dislocation of the left tibia. She wore a cast on her leg for six and one-half weeks. Plaintiff William Madison's loss of wages were approximately $600 and his hospital bill $174.95. Plaintiff Peggy Madison's hospital bill was $109.20, their joint doctor bill was $213, additional household help $260, and $45 miscellaneous expenses. The plaintiff, William Madison, testified that his automobile, which was a total wreck, was valued at approximately $1,000 to $1,500.

The defendant contends that the trial court erred in giving plaintiffs' instructions numbered 5, 6, 7, 8, 9, 12 and 14, and in submitting the question of punitive damages to the jury and in the giving of a general form of verdict being plaintiffs' instruction No. 18.

The record before us reveals that the trial judge at the conference held to settle jury instructions went over plaintiffs' instructions one by one with the defendant's attorney, Mr. Kavensky, and the following occurred with reference to the plaintiffs' instructions numbered 5, 6, 7, 8, 9 and 14:

'The Court: Number Five.

'Mr. Kavensky: O.K.

'The Court: Number Six.

'Mr. Kavensky: O.K.

'The Court: Number Seven.

'Mr. Kavensky: O.K.

'The Court: Number Eight.

'Mr. Kavensky: O.K.

'The Court: Number Nine.

'Mr. Kavensky: I object. There is no evidence at all as to speed greater than is reasonable in this case. * * *

'The Court: Number Fourteen.

'Mr. Kavensky: Number Fourteen, O.K.'

The foregoing record discloses that the attorney for the defendant during the conference held to settle jury instructions expressly advised the trial judge that plaintiffs' instructions numbered 5, 6, 7, 8 and 14 were correct. As to instruction No. 9, he said that there was no evidence of unreasonable speed; but inasmuch as there was evidence that Wigal was driving over 50 miles per hour in a 35 mile per hour zone, plaintiffs' instruction No. 9 was properly submitted to the jury.

It has been recognized repeatedly that counsel cannot consent and agree to instructions during the conference held to settle jury instructions in the trial court and then assign as error the giving of such instructions, so consented to, for the first time on appeal. Arboit v. Gateway Transportation Co., 15 Ill.App.2d 500, 146 N.E.2d 582; City of Waukegan v. Stanczak, 6 Ill.2d 594, 129 N.E.2d 751; Thomas v. Weber, 14 Ill.App.2d 562, 145 N.E.2d 128; Sunga v. Lee, 13 Ill.App.2d 76, 141 N.E.2d 63.

Plaintiffs' instruction No. 12 was of the standard type of instruction given in a personal injury action on the subject of the elements of damages which might be considered. It advised the jury, among other things, that in assessing damages they should assess such sums 'as you find and believe from the evidence will fairly and reasonably compensate William Madison' and the jurors were further instructed that 'you may take into consideration * * * the probable duration of plaintiffs' said injuries, if any, and the extent, if any, to which you find and believe from the evidence same are permanent.' Defendant contends that the giving of this instruction was error for the reason that there was no testimony that the plaintiff William Madison's injuries were permanent. Although the evidence concerning the permanency of the injuries of William Madison was meager, we believe that the jury was properly instructed on this element and that there was sufficient evidence in the record to justify the giving of plaintiffs' instruction No. 12, and the giving of the instruction did not constitute reversible error.

The defendant next urges that the trial court erred in submitting to the jury the question of punitive damages on the theory that punitive damages may be awarded only in cases of intentional wrong where malice is the gist of the action. With this contention we cannot agree. Exemplary damages, punitive damages, and vindictive damages are synonymous, Roth v. Eppy, 80 Ill. 283. Punitive damages have always been recoverable at common law. Punitive damages incidently punish the party against whom they are assessed, but their primary purpose is a warning to deter such a party and others from committing acts similar to those for which the damages are awarded. Punitive damages are not compensatory although they cannot be awarded unless actual damage is shown, Fentz v. Meadows, 72 Ill. 540. Punitive damages are recoverable only when the conduct complained of is accompanied by certain aggravating circumstances, singularly or in combination. Such aggravating circumstances include wantonness and wilfullness, Wabash, St. L. & P. Ry. Co. v. Rector, 104 Ill. 296; malice, Fidelity & Casualty Co. of New York v. Gibson, 135 Ill.App. 290, affirmed 232 Ill. 49, 83 N.E. 539; fraud, Browning v. Jones, 52 Ill.App. 597; oppression, Eshelman v. Rawalt, 298 Ill. 192, 131 N.E. 675, 16 A.L.R. 1311; violence, Hemsteger v. Nelson, 181 Ill.App. 377, and recklessness, LaCerra v. Woodrich, 321 Ill.App. 107, 52 N.E.2d 461.

The rule is, that to authorize the awarding of punitive damages, either malice, violence, oppression or wilful and wanton misconduct must be present in the controversy. City of Chicago v. Martin, 49 Ill. 241; Chicago Consolidated Traction Co. v. Mahoney, 230 Ill. 562, 82 N.E. 868.

Malice being a question of fact for consideration by the jury, it is not necessary that express malice be proved. If it appears that the defendant has acted with a wanton, wilful or reckless disregard of the rights of the plaintiff, malice may be inferred, Chicago Consolidated Traction Co. v. Mahoney, supra; Farwell v. Warren, 51 Ill. 467; Donnelly v. Harris, 41 Ill. 126.

As was stated in Holmes v. Holmes, 64 Ill. 294, the doctrine of punitive damages is too firmly rooted in our jurisprudence to be disturbed. In Wabash, St. L. & P. Ry. Co. v. Rector, 104 Ill. 296, the following rule was recognized at pages 303-304:

'Where an injury is wantonly and willfully inflicted, the jury, may in...