Pree v. Hymbaugh
Decision Date | 22 October 1959 |
Docket Number | Gen. No. 10241 |
Parties | Clifford PREE, Plaintiff-Appellee, v. Earl B. HYMBAUGH, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Cassidy & Cassidy, Peoria, for appellant.
Clifford E. Schmidgall, Knoblock & Ott, Peoria, for appellee.
This is an appeal from a judgment of the Circuit Court of Tazewell County on a jury verdict awarding plaintiff $7,500 in damages for personal injuries sustained in a collision between plaintiff's passenger automobile and a truck driven by defendant.
At the time of the accident, plaintiff was driving his automobile north on Route 121, a two-lane paved highway, and the collision occurred when defendant, proceeding in the opposite direction, turned to the left on to an intersecting gravel road. The defendant, a township highway commissioner, was operating a township truck loaded with gravel which was being transported for use on a township road.
The complaint alleged due care on the part of plaintiff and charged defendant with negligence in the operation of the truck which proximately caused the collision and plaintiff's resulting injuries.
The defendant denied the negligence charges and filed an affirmative defense alleging that at and before the accident, he was an elected township official performing a governmental function and therefore immune from tort liability as asserted in the complaint. Plaintiff did not reply to the affirmative defense and defendant then moved for judgment on the pleadings on the ground that the defense of governmental immunity stood admitted by plaintiff's failure to reply thereto. Denial by the trial court of defendant's motion is assigned as error.
Defendant contends that pursuant to Section 32 of the Civil Practice Act (Chap. 110, Ill.Rev.Stats.1957), plaintiff was required to file a reply to the defense of immunity asserted in defendant's answer and that as the result of plaintiff's failure in that respect, the affirmative defense stands admitted. Such contention cannot be sustained for the reason that the record discloses that defendant introduced evidence to support the affirmative defense and in so doing must be deemed to have waived a reply. The argument advanced by defendant was rejected in Cienki v. Rusnak, 398 Ill. 77, 75 N.E.2d 372, 378 and in so doing the court said:
The same rule was applied in Sottiaux v. Bean, 408 Ill. 25, 95 N.E.2d 899; Klukas v. Union Life Ins. Co., 348 Ill.App. 553, 109 N.E.2d 385. In view of these decisions, it must be held that defendant has not preserved the point now argued.
Alternatively, the defendant argues that if the procedural question raised by the motion for judgment on the pleadings was correctly resolved by the trial court, then at the close of the evidence a verdict for the defendant should have been directed or judgment for the defendant notwithstanding the verdict entered on the post trial motion. Such contention raises the question whether under the law of this state as it now stands, the defense of governmental immunity is available to deendant. Relied upon an supporting defendant's position are Nagle v. Wakey, 161 Ill. 387, 43 N.E. 1079; and Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435. In the Nagle case, the action was against the highway commissioners of a town for negligence in failing to provide railings for a bridge. The court held the commissioners were not liable because as an agency through which the town performs a public duty they were clothed with discretion in the exercise of the duties enjoined upon them and therefore, they might not be held liable for negligence in performing such duties to the public so long as they honestly exercised their discretion and judgment. Admittedly, analogy between the facts in the Nagle case and those appearing in the instant record is lacking. Here it is not claimed that plaintiff's injury resulted from the improper manner in which defendant discharged the duty of repairing or improving the highways within his jurisdiction. The complaint charges the defendant with negligently operating a truck as a result of which plaintiff was injured.
The defendant in the Mower case, decided in 1949, was an employee of the state highway department and was operating a state truck equipped with a snow plow and was engaged in clearing snow from the highway when the truck collided with a car in which the plaintiff was riding. The Supreme Court held that the removal of snow and ice from the highway was a governmental as distinguished from a ministerial function and since at the time of the accident, defendant was engaged in performing a duty of a governmental character, he was not liable for defects in judgment in carrying out such duty. While the Mower case might appear to furnish some support for defendant's contention, we think the efectiveness thereof as a precedent in the instant case has been destroyed by the Supreme Court's opinion in Hering v. Hilton, 12 Ill.2d 559, 147 N.E.2d 311, which was decided in 1958.
In the latter case, the defendant, who was driving a township truck, was engaged in cutting grass and weeds along the roadways. Plaintiff sued for personal injuries sustained in a collision between her automobile and the truck driven by defendant. The complaint as originally filed, charged defendant with negligence in the operation of the truck. At the close of plaintiff's evidence, the defendant filed an affirmative defense alleging immunity from liability by reason of the fact that he was engaged in maintaining public roads for a township. At the close of all the evidence, the trial court, on the basis of the affirmative defense, directed a verdict for defendant. Plaintiff thereupon amended the complaint by adding a wilful and wanton misconduct count. Defendant's motion for a directed verdict on the added count was denied. On appeal to this court we held that as a matter of law, defendant was not guilty of wanton and wilful misconduct and reversed the cause (13 Ill.App.2d 132, 140 N.E.2d 737). Having granted leave to appeal, The Supreme Court reversed and remanded the cause to the Appellate Court with directions to reconsider the wilful and wanton misconduct issue. The basis of the Supreme Court's decision is found in the following excerpt from its opinion:
[12 Ill.2d 559, 147 N.E.2d 315.]
Two of the judges, while dissenting from the court's determination on the wilful and wanton misconduct issue, agreed with the majority opinion that the decision in Mower v. Williams was in error and that an employee who drives a motor vehicle for a government agency is not clothed with governmental immunity. Defendant insists that since the issue of governmental immunity was not reviewable on the appeal in the Hering case, what the Supreme Court said on such issue is obiter dictum and does not constitute authority for...
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