Paul v. Garman

• Decision Date: 23 June 1941
• Docket Number: Gen. No. 9651.
• Citation: 34 N.E.2d 884,310 Ill.App. 447
• Parties: PAUL v. GARMAN ET AL.
• Court: United States Appellate Court of Illinois

310 Ill.App. 447

34 N.E.2d 884

PAUL

v.GARMAN ET AL.

Gen. No. 9651.

Appellate Court of Illinois, Second District.

April 25, 1941.

Rehearing Denied June 23, 1941.

Appeal from Circuit Court, Ogle County; Harry E. Wheat, Judge.

Action by Kathryn Paul, as administratrix of the estate of Clarence Lee Paul, deceased, against LeRoy Garman and another, to recover damages for death allegedly caused by negligent operation of an automobile. Judgment for plaintiff and defendants appeal.

Affirmed. James A. Penny, of Rockford, and Frank A. Kerr, of Oregon, for appellants.

B. Jay Knight, J. E. Goembel, and Frederick H. Haye, all of Rockford, and Martin V. Peterman, of Oregon, for appellee.

WOLFE, Presiding Justice.

The plaintiff is the administratrix of the estate of Clarence Lee Paul. While engaged in repair work on a public road at a place about one and one-half miles north of the Town of Mount Morris, Illinois, Paul was killed on October 2, 1939, by being hit by the automobile of the defendant, LeRoy Garman, which was being driven by his wife, Bernice Garman, who is also a defendant to the suit. It is conceded by the defendants that Bernice Garman was acting as the agent of her husband at the time of the accident.

The suit seeking damages for the death alleged to have been caused by the negligent operation of the automobile by Bernice Garman, was tried before a jury which rendered a verdict of $10,000 in favor of the plaintiff against both defendants. From a judgment entered in that amount, the defendants have appealed.

There are several counts in the complaint charging the defendant, Bernice Garman, with the negligent operation of the automobile. The second count of the complaint is a wilful and wanton count and attention is called to the charging part of that count, which in substance alleges, that on October 2, 1939, Clarence Lee Paul was employed by the Rock Road Construction Company as a laborer on a certain road construction project which the said company had contracted to build; that said project consisted of the surfacing of a public road running north from the City of Mount Morris; that as part of his duties, Paul was assigned to checking loads of gravel as they were dumped by trucks upon the road; that on October 2, 1939, Paul was so engaged in checking loads of gravel dumped on the road at a point about one and one-half miles north of Mount Morris; that trucks were driven on the road from the north toward the place where gravel had been previously dumped, turned around in the road so that they were backed in a southerly direction, and headed in a northerly direction. That, as the gravel was dumped, it was the duty of Paul to take from the driver of each truck, a card and to mark the card with the amount of gravel dumped from the truck; that about 6:30 o'clock P. M., on October 2, 1939, Paul was standing at the westerly side of one of the trucks, as it was standing in the center of the road; that at said time the left door of the driver's cab of the truck was open; that the door was hung from hinges at the front of the cab; that at that time, Paul was standing between the door and the side of the truck; that it was dark, and the truck had its lights burning; that at the same time, another truck was parked in the center of the road a few feet north of the truck near which Paul was standing, which latter truck had its lights burning; that the lights of both trucks were visible for a long distance to persons coming from the north; that Bernice Garman was at that time, driving a Ford Panel truck in a southerly direction on the road; that as she drove along the roadway, she knew that the roadway was under construction; that she saw the lights of the two trucks parked in the center of the roadway; that there was, to the west of the trucks, approximately eight feet of level ground on which an automobile could be driven with safety.

It is further alleged that it was the duty of Bernice Garman, as she was driving there, to drive at a speed reasonable and proper, and it was her further duty to so drive, operate, manage and control the automobile she was driving so as to have it under control, so as not to injure Paul, as he was lawfully upon the highway there; that notwithstanding her duties, the defendant, Bernice Garman, did wilfully, wantonly and maliciously drive toward said trucks at a high and dangerous rate of speed, to-wit: fifty miles per hour; that as she approached the most northerly of said trucks, she took her foot off the accelerator of her automobile, but at no time did she apply the brakes of said automobile; that as she passed the most northerly truck, she increased the speed of her automobile and drove it upon and against Clarence Lee Paul, as he was standing beside the most southerly of said trucks, and upon and against the open door of the most southerly truck.

The answer of the defendants denied every allegation of negligence, and of wilful and wanton misconduct, admitting, however, the allegation that the accident happened in the night when it was dark. The answer was amended by charging the plaintiff's intestate with wilful and wanton misconduct in stepping out directly into the path of defendant's automobile, without warning, and without looking.

The jury answered in the affirmative, a special interrogatory of the plaintiff. Was Bernice Garman guilty of wilful, wanton and malicious misconduct in the operation of the automobile of LeRoy Garman, just before and at the time of the accident? A special interrogatory of the defendants asking if Clarence Lee Paul, just before, and at the time of the accident, was guilty of wilful and wanton misconduct, which was the proximate cause of his own death, was answered by the jury in the negative. Instructions were given on behalf of the plaintiff defining wilful and wanton misconduct, and if the jury found Bernice Garman guilty of wilful and wanton misconduct in the operation of the automobile she was driving at the time of the accident, contributory negligence of the plaintiff's intestate, if any, would not constitute a defense to count two of the complaint.

At the trial timely motions were made by the defendants for a directed verdict, seriatim, as to each particular count of the complaint. Defendants' motion for a new trial, among other grounds, relied upon the failure of the court to direct a verdict for the defendants as to count two. Motions were made by the defendants to set aside the special findings of the jury; and the refusal of the Court so to do was assigned as a reason for a new trial, on the ground that the findings, and each of them, are against the manifest weight of the evidence.

It is contended by the defendants that there is no evidence in the record to support the wilful and wanton charge of count two, and that the refusal of the court to withdraw the count from the jury is error, as a matter of law, requiring a reversal of the judgment and a remandment of the case for a new trial. The rule of practice stated in this contention is found in the case of Greene v. Noonan, 372 Ill. 286, 23 N.E.2d 720, 723,which is cited by them in their brief. We quote from that case where the complaint contained counts charging negligence, and also a wilful and wanton count. “A defendant in a case of this character, facing a charge of wilful and wanton conduct, is placed at a serious disadvantage as compared with one charged merely with negligence; and where there is no evidence to support such charge, it is the court's duty, on motion, to withdraw such charge from the jury, and failure so to do is, by reason of the character of the charge, an error requiring reversal of the cause for no one may know what influence the charge, though not proved, may have had upon the jury, particularly since it has not been informed that it was not to be considered by it. The distinction in law between wilful and wanton conduct and mere negligence is not a matter with which the average juror is familiar. We are of the opinion that the refusal to withdraw from the jury, on appellants' motion, the consideration of the wilful and wanton charges, requires a retrial of the cause.” It is also true that if there was no evidence from which the jury could find Bernice Garman guilty under the charge of wilful and wanton misconduct of count two of the complaint, it was error to submit to the jury the special interrogatory of the plaintiff. Nosko v. O'Donnell, 260 Ill.App. 544.

October 2, 1939, Clarence Lee Paul, was in the employ of a firm of contractors which had a contract with the public authorities to haul and spread gravel on the road. The road extends north from the Town of Mount Morris to the City of Rockford. On that day employees of the road contractors began hauling and dumping gravel on the road. The gravel was loaded into automobile trucks about seven to eight miles north of Mount Morris, and then hauled over the road southward where it was deposited on the road at a point immediately north of the gravel, which had been placed on the road during the day. The work on the road was progressing from the south toward the north. When a truck came near the place where gravel was to be dumped on the road, it was turned around by the driver and propelled backwards, stopped and emptied on the road in front of the newly placed gravel.

In designating the job of the plaintiff's intestate during the road repair work, the witnesses referred to him as “a checker.” It was part of decedent's work to check the loads when they arrived at the dumping place by taking a ticket from the driver, place it over a ticket which decedent had bearing the name of the driver, and then punch both tickets.

At evening on the day of the accident, the road had been thus improved to a place about one and one-half miles north of Mount Morris. At that time, it was nearly dark and the headlights on the trucks hauling gravel were lighted, as they were being driven from the base of supply to the...