Tennes v. Tennes

• Decision Date: 30 June 1943
• Docket Number: Gen. No. 42277.
• Citation: 50 N.E.2d 132,320 Ill.App. 19
• Parties: TENNES ET AL. v. TENNES.
• Court: United States Appellate Court of Illinois

320 Ill.App. 19

50 N.E.2d 132

TENNES ET AL.

v.TENNES.

Gen. No. 42277.

Appellate Court of Illinois, First District, Third Division.

June 30, 1943.

Appeal from Superior Court, Cook County; William J. Lindsay, Judge.

Action by Ida B. Tennes and another against Joe Tennes for injuries sustained by the named plaintiff in an automobile accident. On the death of plaintiff, Mont J. Tennes, the First National Bank of Chicago, executor of his estate, was substituted as a party plaintiff. From an adverse judgment, the plaintiffs appeal.

Reversed and remanded with directions.

W. F. McLaughlin, of Chicago, for appellants.

Arthur J. Donovan, of Chicago (John J. Sullivan and Charles E. Heckler, both of Chicago, of counsel), for appellee.

BURKE, Presiding Justice.

On March 21, 1940, Ida B. Tennes and Mont J. Tennes filed their two count amended complaint in the Superior Court of Cook County against Joe Tennes. On April 2, 1941, they filed an amendment consisting of two additional counts. The first count alleges (1) that on June 13, 1938, the defendant, Joe Tennes, was managing and operating a motor vehicle on and along Route 45 in the State of Wisconsin, about eight miles south of Marion, traveling at a speed of approximately 45 miles per hour; (2) that Ida B. Tennes was riding in the automobile of defendant as an invited guest; that she had nothing to do with the driving of the vehicle and had no control or direction over the operation of the vehicle or its driver; (3) that she was then and there exercising due care and caution for her own safety; (4) that the defendant then and there being tired, exhausted and sleepy, knew and was conscious of the fact that he was about to fall asleep, and that if he fell asleep while operating his automobile it would probably result in injuries to others, particularly to the plaintiff; that with an entire absence of care for the life, person or property of others, and with a conscious indifference to the surrounding circumstances and conditions and with wilful disregard of the consequences, he wilfully and wantonly drove his automobile at a speed of about 45 miles an hour; that while so operating his automobile, the defendant fell asleep, thereby losing control of his automobile, resulting in its running off the road, turning over several times and injuring her; (5) that in consequence of the negligence aforesaid, and as a direct and proximate result thereof, she, Ida B. Tennes, was greatly injured. She asked judgment in the sum of $25,000. The second count was filed in behalf of Mont J. Tennes, and repeated the allegations of the first count. It then added that on June 13, 1938, Mont J. Tennes was the husband of Ida B. Tennes and continued to be her husband; that he was obligated to furnish her support and necessaries, and that because of the negligence of the defendant, he was compelled to lay out and expend $8,500 in endeavoring to have her cured. He asked judgmentin the sum of $10,000. The third count in behalf of both plaintiffs repeats the allegations of paragraphs 1, 2 and 3 of the first count, and also alleges that under the law of the State of Wisconsin it became and was the duty of the defendant to operate, control and manage the motor vehicle with ordinary and reasonable care to prevent injury to the plaintiff, Ida B. Tennes, but that the defendant so negligently drove and operated his automobile that as a proximate result of said negligence and improper operation, the automobile went off the road and overturned; that prior to and at the time aforesaid defendant was operating his automobile without conscious possession of his faculties and was then and there asleep. In this count plaintiff repeated the allegations as to the injuries suffered. In the fourth count plaintiffs repeated and realleged paragraphs 1, 2, 3, 4, 5 and 6 of count two, and also repeated the allegation last above quoted from count three. Defendant answered, admitting that he was operating a certain motor vehicle on Route 45 in the State of Wisconsin and denying all other allegations. He further alleged that the plaintiff, Ida B. Tennes, was guilty of wilful and wanton conduct “which contributed to the cause of this accident.” Before the trial, Mont J. Tennes died, and the First National Bank of Chicago, executor of his estate, was substituted as a party plaintiff. A trial before the court and a jury resulted in a verdict finding the defendant not guilty. At the close of all the evidence plaintiff moved the court to instruct the jury to return a verdict finding the defendant guilty, leaving only the question of the damages to the jury. This motion was overruled. Motions by the plaintiff for a judgment notwithstanding the verdict and in the alternative for a new trial, were likewise overruled, and judgment was entered on the verdict. This appeal followed.

Joe Tennes, the defendant, called by plaintiff under Section 60 of the Civil Practice Act, Ill.Rev.Stat.1941, c. 110, § 184, testified that he was a nephew of Mont J. Tennes, deceased; that on June 13, 1938, he invited his aunt by marriage, Ida B. Tennes, to ride with him from Chicago to Eagle River, Wisconsin, where his aunt and uncle had a summer home. He had been driving an automobile since 1935. They left Chicago about 9 o'clock in the morning and had lunch at a hotel in Fond du Lac, Wisconsin. After lunch they continued to drive on Route 45. He testified that he was driving at a speed of between 35 and 45 miles an hour; that he did not drive over 45 miles an hour at any time; that Mrs. Tennes was sitting next to him in the automobile; that they were not engaged in conversation; that “when we got some place around Marion, Wisconsin, --I don't know just how far it was--I had been feeling rather tired and drowsy, but not to a point I hadn't been that way before while driving an automobile, and the only thing I vividly remember at that point is that I evidently dozed for a minute. The next thing I remember I heard Mrs. Tennes say, ‘Joe, Joe,’ and with that it was just like being on a very rough road. Then, of course, the next thing I was knocked unconscious and woke up later on the side of the road. I didn't have any sensation of hitting anything. I think we ran off the right hand side of the road, the car was on the right hand side when I came to. Mrs. Tennes was lying on the side of the road.” He further testified that they waited until an ambulance came, which took them to a hospital in Clintonville, where they were treated by a physician and remained over night. He stated that he was knocked unconscious at the time of the accident. He was then examined by his own attorney and testified that: “ I was going to Eagle River for a visit and a week's vacation. I was going up as a guest of my aunt and uncle. Usually she would drive up there with one of her sons or go by train. I don't believe she drives herself, she usually drives up with some member of the family. They had cars and someone to drive them. On this occasion I asked her to drive with me. I was going up. I don't believe I ever drove her up there. I suppose there were times when I drove her around Eagle River, but not very much.” The attorney for plaintiff then objected to the attorney for the defendant continuing the examination of the defendant without making the defendant his own witness. At this juncture the attorney for plaintiff stated that he understood the attorney for the defendant was calling the defendant as his (defendant's) witness, and that he had no objection. The attorney for defendant answered: “Oh, no,” and continued to examine his own client. In this examination by defendant's attorney, the defendant further testified:

“My relations with my aunt and uncle were very friendly. My aunt did not indicate the rate of speed at which she wanted to go. We were in no hurry. I had a small motor car. We had no reason to drive fast, so we stayed at 35 to 45 miles an hour. We might sometimes have hit 50. At the time of the accident, I was doing from 35 to 45. I was perfectly sober. I was perfectly alert as I was driving along the road. I do not recall having passed a vehicle just before the accident. I had passed a number of vehicles during the day.”

On further examination by his own attorney, defendant testified as follows:

“Q. Well were you just turning in from passing a truck? Had you just turned in from passing a truck at the time you lost control of this car? A. Well, as I said, I have no sensation of losing control. The only thing I remember is when I was called to and at that time I was like on a rough road. I have no recollection of losing control, of seeing myself go off the road. I had slept well the night before. I got up at 7 o'clock that morning it was a bright warm day.

“Q. Do you remember you stopped in back of a truck at a point where the road was definitely obstructed by a barricade on the road there?” An objection to this question on the ground that it was leading was overruled.

“Q. Now the question I would like to ask you is whether you recall going back along the road when the road was being repaired and do you recall you just had to crawl along there for some considerable distance, maybe 1000 feet or so, before you reached the point where you had the accident? A. No I can't say I do. I don't remember any particular obstruction in the road. It was clear as I recall. I haven't any clear recollection of any one truck. I don't remember anything after my aunt called to me: ‘Joe, Joe’. As I said it was just like I was on a very rough road. I don't know where I was. I don't know whether I was on the pavement or off when she said, ‘Joe, Joe’. Up to that time I was driving straight along the pavement as far as I know. I haven't any idea how long I was unconscious.”

On re-examination by attorney for plaintiff, the defendant was asked: “And you went to sleep at the wheel at that point?” The attorney for defendant interposed an objection to the question, which ...