Murphy v. Kumler
| Decision Date | 31 May 1951 |
| Docket Number | Gen. No. 9751 |
| Parties | MURPHY v. KUMLER. |
| Court | United States Appellate Court of Illinois |
Cassidy & Sloan, Peoria, Costigan, Wollrab & Yoder, Bloomington, for appellant.
Stone, Stone & Hess, Bloomington, for appellee.
Daniel Murphy, plaintiff-appellant, hereinafter called the plaintiff, brought this appeal from a not guilty verdict of a jury in the Circuit Court of McLean County. It is a negligence action resulting from an automobile collision which occurred on U. S. Route No. 150 on November 24, 1947, about 7:00 A. M.
The plaintiff produced all of the witnesses, none being called by Susie Kumler, Executor of the Estate of Charles G. Kumler, deceased, defendant-appellee, hereinafter called the defendant.
The facts are that the plaintiff, while driving his car on his proper side of U. S. Route No. 150, collided with a car owned and operated by Charles G. Kumler. The Kumler car was traveling in the opposite direction to the plaintiff, at about 25 miles per hour, on an icy pavement, while it was snowing. As the two cars approached a curve in the highway, and within 50 to 60 feet distance between them, the Kumler car started to skid, and turned sideways in the road, with part of the car across the black center line of the highway into the path of the automobile operated by the plaintiff. The plaintiff Murphy remained on his side of the road and was not in a skid. At the point of the impact about half of the deceased's car was on the wrong side of the road, or in the lane properly belonging to Murphy, the plaintiff. The plaintiff sustained a fracture of his knee which required surgery, and resulted in the permanent loss of about 20 percent of its function.
The defendant offered no proof, and the court denied the plaintiff's motion for a directed verdict.
Before considering the merits of the plaintiff's appeal it should be mentioned that the defendant filed two defenses in her answer. The first defense was that the accident in question occurred on November 24, 1947; that the suit was filed on the 16th day of November, 1948, and summons served on defendant Charles G. Kumler on the 29th day of November, 1948; that Kumler filed his answer on the 3rd day of December, 1948, and thereafter died on the 21st day of December, 1948, leaving a will which was admitted to probate on the 28th day of December, 1948; that the defendant Susie Kumler qualified as Executor on the 29th day of December, 1948; filed her inventory on the 28th day of February 1949; and filed her final report and was discharged on the 10th day of November, 1949. On the 25th day of January, 1950, the plaintiff filed his petition in the Probate Court of McLean County to vacate the final report and set aside the order of discharge, which petition was allowed on the 30th day of January, 1950. Thereafter, on the 7th day of February, 1950, the plaintiff filed his motion in this cause to substitute as defendant Susie Kumler, Executor of the estate of Charles G. Kumler, deceased, and an order was entered substituting her on the 3rd day of March, 1950. On that day a summons was issued, and served upon the defendant, Susie Kumler, as such Executor, on the 13th day of March, 1950. From those facts the defendant contends that it appears that said substitution and summons were not had in apt time; that the suit against the defendant as Executor of the estate of Charles G. Kumler, deceased, was not filed at any time during the nine months period allowed by statute for the filing of claims against the estate of deceased persons. Chapter 3, Par. 356, Section 204, Ill.Rev.Stat.1949.
The second defense was in the nature of a general denial of the material allegations of the complaint. This was the same as was filed during the lifetime of Charles G. Kumler.
The legal sufficiency of the first defense was raised when the plaintiff made a motion to strike. The court took the motion under advisement until the trial, and after the close of the plaintiff's case overruled the motion. Thereafter the defendant made her motion based upon the first mentioned defense, requesting that the court instruct the jury to find the defendant not guilty. The ruling on this motion of the defendant was reserved by the court and was never passed upon.
The defendant now urges that the trial court erred in not allowing her motion to instruct the jury to find the defendant not guilty. Without intending to determine the many other issues suggested by the situation, this court is without authority to consider a matter not passed upon by the trial court. It is stated by both parties, and the abstract confirms the fact, that the trial court never passed upon the defendant's motion for a directed verdict based upon the first defense contained in the defendant's answer. In Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897, the Supreme Court held unconstitutional a section of the Civil Practice Act which permitted the Appellate Court to pass upon a motion for a new trial not passed upon by the Circuit Court. At page 86 of 376 Ill., at page 900 of 32 N.E.2d, it stated: ...
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...shifts to the defendant in this circumstance. Crosby v. Distler, 38 Ill.App.3d 1058, 349 N.E.2d 448, 450 (1976); Murphy v. Kumler, 344 Ill.App. 287, 100 N.E.2d 660, 663 (1951). 2 More recent cases, however, consistently describe the defendant's burden as one of production only. See, e.g., O......
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