Robinson v. Workman

• Decision Date: 21 September 1955
• Docket Number: Gen. No. 10014
• Citation: 129 N.E.2d 32,7 Ill.App.2d 42
• Parties: Bertie Lee ROBINSON, Administrator of the Estate of James Robinson, deceased, Plaintiff-Appellee, v. William F. WORKMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 32

129 N.E.2d 32

7 Ill.App.2d 42

Bertie Lee ROBINSON, Administrator of the Estate of James Robinson, deceased, Plaintiff-Appellee, v. William F. WORKMAN, Defendant-Appellant.

Gen. No. 10014.

Appellate Court of Illinois, Third District.

Sept. 21, 1955.

Rehearing Denied Oct. 7, 1955.

George P. Proctor, Lewistown, for appellant.

Ezra J. Clark, James F. Scott, Canton, for appellee.

REYNOLDS, Justice.

This case grows out of a collision between the automobile in which William F. Workman and James Robinson were riding, and one driven by Karolyn Woodcock, on the evening of November 4, 1953. The accident occurred on Illinois Highway No. 9, at a point about two miles east of Canton, Illinois. The weather conditions were good and the pavement was dry. The time was about 5:30 P.M. and the lights of cars on the highway were on. In the collision, James Robinson was killed. Other than the people involved, no one saw the actual collision and it was stipulated that the driver of the other car, Karolyn Woodcock, if called as a witness would testify that she remembered nothing about it, immediately prior to or at the time of the accident. There was no direct testimony as to who was driving the defendant's car. The evidence shows there were only two persons in the defendant's car, the deceased, James Robinson and the defendant. The defendant, of course, was not competent to testify as to which one of them was driving. After the accident, the defendant's car was overturned and witnesses who arrived at the scene of the accident before the people were moved, testified generally, that Robinson was near the front of the car and the defendant was in back of him, that is, to the rear of the car. There was testimony that one shoe was found wedged between the accelerator and the transmission case of the Workman car. It is not clear whether or not this shoe belonged to Workman, but there is some evidence that Workman did not have a shoe on either foot immediately after the accident. Workman was injured about the left heel, was cut just below the chin, had some loosened teeth and was bleeding about the ears. Workman complained of pain in his back, but there were no outward evidences of wounds to the back. Robinson was badly cut about the head and face and one knee was badly scratched. Just what caused Robinson's death does not appear in the record. There was no post mortem examination.

The defendant's wife testified that the glass in front of the driver's seat was broken out, but that in front of the passenger's side, the glass was still intact.

It was testified that Robinson could drive a car and had driven a car in the past. There was some testimony that Robinson was a man of careful and cautious habits. This was rebutted in part by the testimony of police officers who testified that they had known Robinson for several years; that he used liquor frequently; had been arrested several times for intoxication; had a reputation for excessive use of intoxicating liquors and was what they called a week-end man. There was no evidence that either Robinson or the defendant had been drinking or that any liquor was found in the car. There was evidence that the Workman car was weaving from side to side on the road, and the speed of the Workman car was estimated at something over 50 miles per hour, based upon the speed of the car it passed, and one following.

The administrator of the Estate of James Robinson, deceased, brought suit against the defendant William F. Workman, claiming Robinson was a guest; that his death was the result of alleged wilful and wanton misconduct on the part of the defendant by reason of driving on the wrong side of the road, excessive speed, and by causing his automobile to come into collision with the car driven by Karolyn Woodcock. The cause was tried before a jury and the jury found the defendant guilty and assessed damages at $20,000. From that verdict and the judgment entered thereon, the defendant appeals to this court.

The defendant raises four questions. First, that there is no evidence that the defendant was driving the car in question. Second, that there was no evidence tending to prove that the defendant, if driving, was guilty of any wilful or wanton conduct, or that the deceased was free from wilful and wanton misconduct. Third, that the verdict of the jury was against the manifest weight of the evidence and fourth, that the trial court erred in giving plaintiff's instructions Nos. 17, 21, 22, 24 and 25.

Taking up the first point raised by the defendant, it must be conceded that there is no direct evidence to show that the defendant was driving the car owned by Workman. So far as the evidence is concerned, Robinson could have been driving and Workman riding alongside. In fact, the evidence would tend to support this theory. When found, Robinson was at the front of the car and Workman to his rear. Workman was cut about the chin and foot but otherwise not marked up, while Robinson was badly cut about the face and head. The windshield in front of the driver was broken out, which could account for the cuts on Robinson's face. All this however, is purely circumstantial and the fact remains that there is no substantial evidence as to which one of the two was driving. But, the plaintiff contends, the answer of the defendant admits that Workman was driving. Paragraph 6 of the complaint says: 'That at said time and place plaintiff's intestate, the said James Robinson, was riding in said motor vehicle or automobile as a guest of the said defendant.' Paragraph 6 of the answer admits the guest relationship in the following words: 'This defendant admits the allegations of paragraph 6 of said complaint.' The guest relationship being admitted, does this by implication admit that the defendant was driving? We do not think so. 'Where the circumstances surrounding the parties indicate that the considerations inducing the defendant to extend transportation to the plaintiff were primarily those of hospitality or sociability, it has been held that the mere fact that the plaintiff assisted with the driving, even where such assistance was contemplated from the beginning of the trip, would be insufficient to change the status of the plaintiff from that of a guest to that of a passenger.' American Law Reports, Annotated, 10 A.L.R.2d 1364. Here there was no evidence as to the reason why Robinson was in the car with the defendant. He may have been driving, at his own request, or at the request of the defendant.

The cases cited by the plaintiff do not resolve this question. A guest has been defined as 'one who the operator of a motor vehicle invites to ride with him as an incident of hospitality, companionship or the like without financial or other return except such casual benefits as may be extended as a part of ordinary courtesies.' Dirksmeyer v. Barnes, 2 Ill.App.2d 496, at page 502, 119 N.E.2d 813, at page 815. We understand the use of the word 'operator' to be synonymous with 'owner'. Here...