Marks v. Marks

• Decision Date: 22 January 1941
• Docket Number: Gen. No. 41310.
• Citation: 31 N.E.2d 399,308 Ill.App. 276
• Parties: MARKS v. MARKS.
• Court: United States Appellate Court of Illinois

308 Ill.App. 276

31 N.E.2d 399

MARKS

v.MARKS.

Gen. No. 41310.

Appellate Court of Illinois, First District, Third Division.

Jan. 22, 1941.

Appeal from Superior Court, Cook County; Paul McWilliams, Judge.

Action by George M. Marks against Eli Marks, for injuries sustained in an automobile driven by defendant. From a judgment for the plaintiff, defendant appeals.

Affirmed.

John A. Bloomingston, of Chicago, for appellant.

Harry S. Greenstein and Charles C. & Richard M. Spencer, all of Chicago, for appellee.

DENIS E. SULLIVAN, Justice.

Defendant Eli Marks brings this appeal from a judgment entered in the Superior Court in favor of plaintiff George M. Marks, his brother, for $2,500 as damages for personal injuries which plaintiff alleges he received because of negligence on the part of defendant.

The first count of the complaint charges negligence only in the management and operation of the automobile by the defendant; that said automobile was driven carelessly, recklessly and negligently, contrary to the provisions of the statute.

The second count alleges that the defendant wilfully, wantonly and maliciously drove his automobile at a speed in excess of 35 miles an hour, while defendant was asleep, stating: “While the said defendant was without conscious possession of his faculties and was then and there asleep, and that by means and in consequence of said wanton, wilful and malicious misconduct in that respect, the defendant lost control of his said automobile.”

Plaintiff contends that he went on an automobile trip with his brother, defendant herein, and that both were awake for a longer time than the normal period of wakefulness; that defendant fell asleep and that as a consequence the plaintiff was injured; that such conduct was wilful, wanton and malicious.

Defendant contends that there was no wilful, wanton and malicious misconduct, but that if such action constituted wilful and wanton misconduct that the plaintiff was equally guilty of the same misconduct.

The evidence shows that the accident occurred on May 7, 1936, when the plaintiff who was 34 years old and a salesman, was returning to Chicago from Detroit, Michigan, where he had made an automobile trip with his brother Eli Marks, the defendant.

The evidence further shows that the two brothers left Chicago on May 5, 1936, about 10 o'clock in the evening; that when they reached South Haven, Michigan it was about 1:30 A. M. and they slept in a hotel there and continued on their trip about eight hours later, or 9:30 A. M.; that they took turns driving and arrived at Detroit, Michigan, about noon; that defendant transacted some business and they went to a movie; that they left Detroit that afternoon about 5 or 5:30 o'clock; that the defendant drove until they reached South Haven about 2:30 the next morning, May 7th; that before reaching South Haven, defendant was arrested for speeding; that after they had left Detroit, about 9:30 P. M. plaintiff suggested that they stop for the night and get up early in the morning and continue; that defendant objected to that plan as he said he had certain things he wanted to do, in Chicago, so they continued on with defendant driving and after he had driven a short distance he was going around a curve at 70 or 75 miles an hour; that plaintiff then took the wheel as it was a very dangerous curve, and continued to drive to 147th street and Cicero avenue in Chicago, when they ran out of gasoline; that it was then about 5 A. M.

The evidence further shows that they walked to a gasoline station and waited for the attendant to open it and plaintiff bought a gallon of gasoline; that at this point they changed drivers and defendant took the wheel and started north on Cicero avenue; that soon after leaving 147th street and Cicero avenue plaintiff fell asleep, as he stated the last thing he remembered was passing 140th street, until he regained consciousness in a hospital on the evening of May 7th. Defendant stated that they left the gasoline station at 147th street and Cicero avenue and that his brother, plaintiff herein, was asleep and that the next thing he knew he awakened in a hospital.

The gas station attendant who was located at 147th street and Cicero avenue stated that he remembered these gentlemen coming into the gasoline station to purchase some gasoline; that one of them said in a low voice, “I want some gasoline” and one of them said, “I am tired and sleepy”; that he asked them where they came from and they said they had come from Detroit and had not had much rest; that he, the attendant, told them that they had better “watch their step”; that they got into the automobile and departed and that they appeared tired and sleepy.

There does not appear to be any dispute as to the facts in this case. As to the law, nearly all that has been said on this subject is contained in the case of Barmann v. McConachie, 289 Ill.App. 196, 6 N.E.2d 918, 919, wherein Mr. Justice Murphy, now of the Supreme Court, in his opinion sets forth and distinguishes the various cases on this subject. In that case the defendant, a young man 24 years old, and the plaintiff, a young woman aged 20, both of whom resided in Sparta, drove to a dance to be held at a tavern in Chester, about 20 miles from Sparta. They arrived at Chester about eight o'clock and each had two drinks of whisky soon after they arrived, but did not drink any more that evening. They danced until about 12 o'clock and started towards Sparta. On the way from Chester to Sparta they concluded to go to Moffat's restaurant which was six or seven miles north of Sparta. Soon after this arrangement was made plaintiff told defendant she was sleepy and defendant told her to go to sleep and he would drive. Plaintiff awakened at Sparta, but soon fell asleep and remained asleep until the accident occurred about four miles north of Sparta and two and one-half miles from Moffat's. Defendant testified as follows:

“ ‘It was about a quarter to one when we left Sparta going to Moffat's. I was sober and had all my mental faculties. I drove to Sparta. Had not driven off the highway and was able to control my car to Sparta. I realized I was sleepy. First realized this about four miles out of Sparta. I did not inform Miss Barmann that I was sleepy. At that time I was driving about forty miles an hour and continued to operate at that speed. I felt at that time as I ordinarily feel when I am about to go to sleep. At that time I would say I was between two and two and a half miles from this restaurant, and I continued driving toward the restaurant. Then the first thing I knew was the crash. After the crash my car was out in the field along side of a telephone post.’ When called in his own behalf, he testified...