Seward v. Griffin

• Decision Date: 10 June 1983
• Docket Number: Nos. 82-374,82-375 and 82-377,s. 82-374
• Citation: 72 Ill.Dec. 305,116 Ill.App.3d 749,452 N.E.2d 558
• Parties: , 72 Ill.Dec. 305 Rose Marie SEWARD and Robert L. Seward, as parent and next friend of Gwen E. Seward, a minor, and Robert L. Seward, Plaintiffs-Appellants, v. Howard E. GRIFFIN, Cook at Eighth, Inc., a corporation, Elda Blalock, Julia Kent, individually and d/b/a Century Lounge, Frances Norbut, Larry Coons, individually and d/b/a Larry's Auto Sales, Volkswagen of America, Inc., a foreign corporation, Volkswagen North Central Distributor, Inc., an Illinois corporation, and Volkswagenwerk A.G., Defendants-Appellees Cross-Appellants.
• Court: United States Appellate Court of Illinois

Page 558

452 N.E.2d 558

116 Ill.App.3d 749, 72 Ill.Dec. 305

Rose Marie SEWARD and Robert L. Seward, as parent and next friend of Gwen E. Seward, a minor, and Robert L Seward, Plaintiffs-Appellants, v. Howard E. GRIFFIN, Cook at Eighth, Inc., a corporation, Elda Blalock, Julia Kent, individually and d/b/a Century Lounge Frances Norbut, Larry Coons, individually and d/b/a Larry's Auto Sales, Volkswagen of America, Inc., a foreign corporation, Volkswagen North Central Distributor, Inc., an Illinois corporation, and Volkswagenwerk A.G. Defendants-Appellees Cross-Appellants.

Nos. 82-374, 82-375 and 82-377.

Appellate Court of Illinois,

Third District.

June 10, 1983.

Rehearing and Certificates of

Importance Denied Aug. 31, 1983.

[72 Ill.Dec. 309] Jay H. Janssen and Jerelyn D. Maher, Peoria, for plaintiffs-appellants

Roland N. Litterst, Covey & Litterst, Peoria, for Larry Coons.

Robert V. Dewey, Jr., Heyl, Royster, Voelker & Allen, Peoria, for Cook at Eighth, Inc.

David A. Nicoll and Daniel L. Johns, Westervelt, Johnson, Nicoll & Keller, Peoria, for Volkswagen of America and Volkswagenwerk A.G.

SCOTT, Justice:

On September 15, 1976, in Havana, Illinois, Rose Seward and her daughter Gwen were the driver and passenger in a 1970 Volkswagen van that was struck by an Oldsmobile driven by Howard Griffin. Rose Seward and Gwen Seward received serious injuries as a result of the collision. Suit was filed by Rose Seward individually and by Robert Seward as parent and next friend of Gwen Seward against numerous defendants on numerous theories. Suit was filed against Howard Griffin, who died of causes unrelated to the accident here in question before the matter came to trial. Suit was filed against Cook at Eighth, Inc., under the Dram Shop Act, alleging that the corporate defendant sold alcoholic liquor to the defendant Griffin immediately before the collision. Suit was filed against Larry Coons alleging that Coons negligently entrusted the Oldsmobile to the defendant Griffin. Finally, suit was brought against Volkswagen of America, Inc., and Volkswagenwerk A.G. alleging that the design of the plaintiff's van was unreasonably dangerous.

After an extended trial, a Peoria County jury entered a judgment against the defendant Coons, and he appeals. The jury entered a judgment against the defendant dramshop, and it appeals. The jury entered a judgment against the defendants-Volkswagen for Rose Seward, and Seward appeals urging that the award of damages was inadequate and that errors tainted the jury's verdict, while the defendants-Volkswagen cross-appeal urging that a judgment non obstante verdicto should have been granted in the circuit court negating any recovery for Rose Seward; in the alternative, the defendants-Volkswagen pray for an affirmance of the verdict in favor of Rose Seward, or if a new trial is ordered, then a trial on all issues, not just on the issue of damages. Lastly, the jury entered a verdict for the defendants Volkswagen and against Robert Seward on behalf of his daughter Gwen, and they appeal. The issues raised on each appeal will be considered separately.

LARRY COONS' APPEAL

On September 13, 1976, Larry Coons owned and operated a small used car sales business in Mason County, Illinois, known as Larry's Auto Sales. At about 1 p.m. that day, Howard Griffin came to the used car lot and negotiated with Larry Coons for the trade of a Cadillac he was driving for a 1968 Oldsmobile.

According to George Morrell, an employee of Larry Coons, an agreement to trade the two cars "even up" was reached, the assignment of title was signed by both Howard Griffin and Larry Coons in Morrell's presence as a notary public, and the state sales tax forms were made out and signed by both parties. Thereafter, Griffin took the license plates off the Cadillac, put them on the Oldsmobile, left the Cadillac on the lot, and drove away in the Oldsmobile.

A different version of events was testified to by Howard Griffin's ex-wife, Cathy Sue. According to Mrs. Griffin, on September 13, 1976, she and Griffin were on the lot twice. Larry Coons offered the Oldsmobile to Griffin for sale and offered to let Griffin try out the car. The first time, Griffin drove the car to Kilbourne, Illinois, with Cathy Sue driving the Cadillac. They returned the car to Coons' lot about an hour and a half later. At this second meeting, Mrs. Griffin told Coons that it was not a fair trade and that Howard Griffin could not trade since she owned the Cadillac and Two days later on September 15, 1976, it was the same 1968 Oldsmobile that the defendant Griffin was driving when he pulled into the passing lane and struck the plaintiff's van head on. On appeal, the defendant Coons argues that the theory of negligent entrustment should not apply in the context of a seller and purchaser. In so contending, the defendant would have this court adopt the recollections of George Morrell while rejecting the recollections of Cathy Sue Griffin. This is contrary to the result reached by the Peoria County jury, in that they responded to a special interrogatory by finding that no sale took place. It is axiomatic that questions of credibility and believability of witnesses are within the province of the jury, and while there would appear to be some inconsistencies in the testimony of Mrs. Griffin, we cannot say that those inconsistencies rendered her testimony so suspect that it could not support the jury's finding on the special interrogatory.

[72 Ill.Dec. 310] she would not trade her car. Mrs. Griffin further testified that on this occasion she told the defendant Coons that Howard Griffin had not had a drivers license for at least 15 years due to his driving record and that he had been to Vandalia many times because of drunken driving. It was Mrs. Griffin's recollection that no sale and purchase took place on September 13, 1976, nor could such a transaction have been consummated without her consent. She testified that Larry Coons had knowledge of her interest in the Cadillac. Finally, when the executed assignment of title was examined subsequent to the September 15th collision, she asserted that the purported signature of Howard Griffin on the assignment [116 Ill.App.3d 754] was a forgery.

Even if no sale and purchase took place, the defendant Coons believes that liability should not attach in this situation, that is in this commercial setting where the Oldsmobile was entrusted to a potential purchaser. It is correct to say that an automobile dealer is not liable for the negligence of a prospective purchaser who was allowed to drive the dealer's car for a trial or demonstration. (Mosby v. Kimball (1931), 345 Ill. 420, 178 N.E. 66.) The rule set down in the Mosby case establishes that negligence will not be imputed to the auto dealer, entrusting an automobile to a prospective purchaser, in the same manner that negligence is imputed to the master who entrusts an automobile to his servant or to the principal who entrusts an automobile to his agent. (Accord: Dean v. Ketter (1946), 328 Ill.App. 206, 65 N.E.2d 572.) It is not necessary, however, to impute negligence to the automobile dealer where he himself has committed an independent act of negligence. Such an independent act of negligence occurs on the part of the automobile dealer where he lends the automobile to a person he knows is incompetent to drive or is reckless. (Blashfield, Automobile Law and Practice, Volume 6, Section 254.13 (3rd Edition, 1966).) Numerous courts have determined that entrusting a car to an unlicensed driver is tantamount to entrusting a car to an incompetent driver, and therefore an independent act of negligence. (Kinney v. Smith (Idaho, 1973), 95 Idaho 328, 508 P.2d 1234; Barnes v. Zinda (Texas Civ.App.1971), 464 S.W.2d 501; Mundy v. Pirie-Slaughter Motor Company (Texas, 1947), 146 Tex. 314, 206 S.W.2d 587; Hardwick v. Bublitz (Iowa, 1963), 254 Iowa 1253, 119 N.W.2d 886; Anthony v. Covington (Oklahoma, 1940), 187 Okl. 27, 100 P.2d 461.) Further, many of those courts adopt the view that the negligence of the unlicensed driver provides a causal connection necessary to establish liability in tort between the negligence of the entrusting automobile dealer and the injuries sustained by the plaintiff. This appears to be the preferred view. Where, as in the instant case, there was testimony that Larry Coons had actual knowledge that the defendant Griffin was an unlicensed driver, we conclude that entrusting the car to Griffin was an independent negligent act which proximately caused the injuries to Rose and Gwen Seward.

In addition, the defendant Coons cites as reversible error the circuit court's failure to use special verdict forms and Also eliciting the objection of defendant Coons was the circuit court's failure to charge the jury with his instruction number 1. That instruction concerned the Illinois statute in effect in 1976 concerning the procedures for transferring the certificate of title to an automobile. Clearly, no instruction need be presented to the jury concerning an issue or issues not raised by the pleadings or proof. (Shore v. Turman (1965), 63 Ill.App.2d 315, 210 N.E.2d 232.) It cannot be disputed that the jury in this case was called upon to decide whether a sale and purchase had been consummated, but in making that determination, the only issue to be resolved was whether George Morrell's recollection or Cathy Sue Griffin's recollection was to be believed. Mrs. Griffin supported her position that no sale and purchase took place with testimony that she was familiar with her husband's signature, and that the signature which appeared on the title document, being the title to the Oldsmobile, the signature which George Morrell purportedly witnessed, was not in fact Howard Griffin's signature. It is clear from the jury's verdict that they found Cathy Sue Griffin to be a more credible witness. As the instruction which was refused by the circuit court was not relevant to any...