Summary
In Hughes v. Medendorp, 294 Ill. App. 424, it was held that the absence of these factors in an instruction was erroneous.
Summary of this case from Wolf v. BudzynOpinion
Gen. No. 9,085.
Opinion filed January 17, 1938. Rehearing denied April 5, 1938.
1. WITNESSES, § 21 — daughter of defendant in wrongful death action competent witness. In action for wrongful death by administrator court did not err in permitting daughter of defendant to testify since she had no interest in outcome of litigation.
See Callaghan's Illinois Digest, same topic and section number.
2. WITNESSES, § 39fn_ — when testimony of wife inadmissible in action against husband for wrongful death. In action for wrongful death by administrator, wife of defendant was incompetent witness since wife is incompetent to testify in any action in which her husband is directly interested in event thereof, when adverse party sues as administrator of any deceased person (Ill. Rev. Stat. 1937, ch. 51, § 5; Jones Ill. Stats. Ann. 107.071).
3. COURTS, § 38fn_ — binding effect of Appellate Court opinion. Opinion of Appellate Court is binding authority not only upon said court, but upon all inferior courts in State (Ill. State Bar Stats. 1935, ch. 37, ¶ 49; Jones Ill. Stats. Ann. 36.039).
4. TRIAL, § 20fn_ — right of comment on counsel's statement to jury. Contention that court erred in refusing counsel right to comment upon statements made by opposing counsel in his opening statement to jury held without merit.
5. HARMLESS AND PREJUDICIAL ERROR, § 149fn_ — when refusal to give certain instructions not error. In action for wrongful death, refusal of court to give instructions which were part of Injuries Act did not have tendency to jeopardize rights of plaintiff, although it would not have been error to give them (Ill. Rev. Stat. 1937, ch. 70, §§ 1 and 2; Jones Ill. Stats. Ann. 38.01, 38.02).
6. AUTOMOBILES, § 144fn_ — instruction assuming that defendant's automobile struck child erroneous. In action for wrongful death of 13year-old boy resulting from automobile collision, instruction which assumed that plaintiff's intestate was struck by automobile driven by defendant when claim of defendant was that boy ran into car and was so worded as to cause jury to speculate as to what plaintiff's intestate might have done or what he omitted to do that reasonably prudent person of his age, intelligence and experience would have done or omitted under like circumstances was properly refused by court.
7. NEGLIGENCE, § 124fn_ — when instruction requiring plaintiff to show intestate's freedom from negligence erroneous. In action for wrongful death of 13-year-old boy resulting from automobile collision, instruction which required plaintiff to show that his intestate was not guilty of any negligence whatever that in any way proximately contributed to injury was erroneous since plaintiff is not required to show anything but merely must prove by preponderance of evidence that at and just before time in question the boy was in exercise of due care and caution for his own safety.
8. WORDS AND PHRASES — word "show" defined. Word "show" means to make apparent or clear by evidence, to reasonably satisfy.
9. NEGLIGENCE, § 56fn_ — child under age of seven not responsible for acts. At common law child under age of seven years was conclusively presumed not responsible for his acts.
10. NEGLIGENCE, § 57fn_ — rebuttable presumption as to responbility of child between ages of seven and fourteen. Child between ages of seven and fourteen is presumed not responsible for his acts but this presumption may be overcome by proof of intelligence or capacity of child.
11. INSTRUCTIONS, § 192afn_ — when instruction not to consider damages proper. In action for wrongful death, it was not error to charge jury that if they found plaintiff was not entitled to recover, then they would have no occasion to consider question of damages.
12. INSTRUCTIONS, § 175fn_ — instruction as to weight to be given certain testimony erroneous. In action for wrongful death, instruction concerning weight to be given to testimony of witness when contradictory statements were made out of court was erroneous where it used words "if any" since such words convey to jury idea that they can disregard entire testimony on this account, which is not the law.
13. INSTRUCTIONS, § 162fn_ — when instruction erroneous for giving undue prominence to absence of testimony by defendant. In action for wrongful death, instruction which informed jury that under law defendant could not testify, and fact that he did not take stand was not to be considered as any evidence against him was erroneous as singling out defendant and giving undue prominence to absence of testimony on his part.
14. NEGLIGENCE, § 118fn_ — instruction requesting not guilty verdict if injuries resulted from mere accident erroneous. In action for wrongful death, instruction that if plaintiff's intestate's injuries were result of mere accident without any negligence on part of defendant, they should return verdict of not guilty, was erroneous.
15. NEGLIGENCE, § 132fn_ — instruction on contributory negligence of child omitting reference to age, intelligence and experience erroneous. In action for wrongful death of 13-year-old boy resulting from automobile collision, instruction that did not inform jury that in finding intestate guilty of contributory negligence they must believe that he was not exercising that degree of care that boy of his age, intelligence and experience would exercise under same or similar circumstances, was erroneous.
16. INSTRUCTIONS, § 60fn_ — instruction basing conclusion on single item of evidence erroneous. In action for wrongful death, instruction was erroneous where it selected single item of evidence or one fact claimed to have been disclosed by evidence and stated that certain conclusion did not follow.
17. NEGLIGENCE, § 132fn_ — instruction stating law of contributory negligence as to mature person erroneous in action for death of child. In action for wrongful death of 13-year-old boy, instruction on contributory negligence which failed to take into consideration that plaintiff's intestate was boy of 13 and stated law applicable to person of mature years, was erroneous.
18. INSTRUCTIONS, § 163fn_ — when instruction as to preponderance evidence erroneous. In action for wrongful death, instruction which told jury that if evidence was evenly balanced or if they could not say on which side evidence preponderated, it was their sworn duty to find for defendant, held erroneous.
19. NEGLIGENCE, § 118fn_ — when instruction as to wilful and wanton conduct erroneous. In action for wrongful death, instruction whereby defendant attempted to inform jury as to what constitutes wilful and wanton conduct, but confined definition to gross want of care and an entire absence or want of care for life, person or property of others, in operation of his automobile, was erroneous.
Appeal by plaintiff from the Circuit Court of Vermilion county; the Hon. GRENDEL F. BENNETT, Judge, presiding. Heard in this court at the October term, 1937. Reversed and remanded. Opinion filed January 17, 1938. Rehearing denied April 5, 1938.
STEELY, STEELY, GRAHAM DYSERT and H. J. HASCH, both of Danville, for appellant; WALTER V. DYSERT, of counsel.
MANN STIFLER, of Danville, for appellee.
Orley Hughes, administrator of the estate of Dickie Hughes, deceased, by his appeal seeks to reverse a judgment of the circuit court of Vermilion county, Illinois, entered in bar of his action to recover damages against Albert Medendorp, appellee, for his alleged negligence which caused the death of Dickie Hughes, the son of appellant.
As cause for reversal of said judgment, in addition to the claim that the verdict of the jury was contrary to the manifest weight of the evidence, appellant also contends that the trial court erred in admitting evidence over his objection and also erred in refusing to admit proper evidence offered on his behalf, and in the giving of improper instructions on behalf of the defendant, and in refusing to give proper instructions tendered on behalf of plaintiff.
Appellant complains of the action of the court in permitting Eunice Medendorp, wife of the defendant, and Ruth Medendorp, a daughter of defendant, to testify for the reason they were directly interested in the event of the suit and the adverse party was suing as the administrator of a deceased person. Appellant fails to point out any interest that the witness, Ruth Medendorp, had in the outcome of the litigation, and we fail to see none and are of the opinion that she was a competent witness.
In support of the contention that Eunice Medendorp is an incompetent witness appellant insists that a proper construction of section 5 of the act of the legislature in relation to Evidence and Depositions, ch. 51, sec. 5, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 107.071, renders a wife incompetent to testify in any action in which her husband is directly interested in the event thereof, when an adverse party sues as administrator of any deceased person. In this contention appellant is upheld by the case of In re Estate of Teehan, 287 Ill. App. 58.
Since the amendment of sec. 41, ch. 37, Smith-Hurd Ann. St. 1935 [Ill. State Bar Stats. 1935, ch. 37, ¶ 49; Jones Ill. Stats. Ann. 36.039], an opinion of the Appellate Court is binding authority, not only upon said court, but upon all inferior courts in this State. The wife of the defendant was an incompetent witness in this case, and the admission of her testimony was reversible error.
There is no merit in the contention of appellant that the court erred in refusing counsel the right to comment upon statements made by counsel for defendant in his opening statement to the jury. Appellant insists that the court erred in refusing instructions one and two tendered in his behalf. These instructions were sec. 1 and part of sec. 2 of the Injuries Act [Ill. Rev. Stat. 1937, ch. 70; Jones Ill. Stats. Ann. 38.01, 38.02], and we are of opinion that the refusal of the court to give them did not have a tendency to jeopardize the rights of plaintiff, although it would not have been error to give them.
Instruction 5 was properly refused by the court for the reason that it assumes plaintiff's intestate was struck by the automobile driven by defendant when the claim of defendant is that he ran into the car of the deceased. It is so worded as to cause the jury to speculate as to what he might have done or what he omitted to do that a reasonably prudent person of his age, intelligence and experience would have done or omitted under like circumstances.
Appellant contends that the first instruction given on behalf of appellee was erroneous. It is as follows: "The court instructs the jury that the burden of proof in this case is upon the plaintiff to show that plaintiff's intestate was not guilty of any negligence whatever that in any way proximately contributed to the injury to said plaintiff's intestate, and if he fails to make such proof by the preponderance or greater weight of the evidence, you should find the defendant not guilty, as to the first to sixth counts (inclusive), of plaintiff's complaint." This instruction informs the jury that the burden of proof is upon plaintiff to show that plaintiff's intestate was not guilty of any negligence whatever that in any way proximately contributed to the injury. A plaintiff is not required to show anything. All he is required to do is to prove by a preponderance of the evidence that at and just before the time in question he was in the exercise of due care and caution for his own safety, but in this case the plaintiff was only required to prove by a preponderance of the evidence that at and just before the time in question plaintiff's intestate was exercising that degree of care that a boy of his age, intelligence, capacity and experience would exercise under the same or similar circumstances. The word "show" means to make apparent or clear by evidence, to reasonably satisfy. Black's Law Dictionary, Third Edition.
A plaintiff is not required to produce evidence to satisfy the jury or to prove his case by a clear preponderance of the evidence. Hurzon v. Schmitz, 262 Ill. App. 337; Nelson v. Fehd, 203 Ill. 120, 67 N.E. 828; McGuire v. Guthmann Transfer Co., 234 Ill. 125, 84 N.E. 723.
At common law a child under the age of seven years was conclusively presumed not responsible for his acts, between the ages of seven and fourteen years he was still so presumed to be, but this presumption might be overcome by proof of the intelligence or capacity of the child. That rule is recognized in this State. Wolczek v. Public Service Co., 342 Ill. 482, 174 N.E. 577. This instruction was erroneous because it held plaintiff's intestate to a higher degree of care than is required by the laws in this State.
It was not error to give instruction No. 2, complained of, where the jury were told if they find the plaintiff is not entitled to recover then they will have no occasion to consider the question of damages. Instruction 3, complained of is a proper instruction with one exception. It did not tell the jury that they may disregard the evidence of a witness when contradictory statements are made out of court, but informs them that they may take such statements into consideration in determining what weight they may give to the testimony, which was proper. It was erroneous in telling the jury that, in determining what weight, "if any," you should give the testimony of such witness. The words, "if any," should not have been inserted in the instruction as they convey to the jury the idea that they can disregard his entire testimony on this account, which is not the law.
Instruction 4 informed the jury that under the law the defendant could not testify. And the fact that he did not take the stand is not to be considered as any evidence against him. This instruction singled out the defendant and gave undue prominence to the absence of testimony on his part. Instruction 5 informs the jury that if they believe that plaintiff's intestate 's injuries were the result of a mere accident without any negligence on the part of the defendant they should return a verdict of not guilty. This instruction was held bad in the case of Streeter v. Humrichouse, 357 Ill. 234, where it pointed out that deceased was not injured by accident alone. Instruction 6 tells the jury that if they believe from the evidence that the injury to plaintiff's intestate was caused by his act in suddenly running from the east side of the pavement to the west side of the pavement and was not caused by the negligence of the defendant, then the defendant was not liable, and it will not be sufficient to entitle plaintiff to recover to prove merely that his intestate was injured by colliding with the automobile owned by defendant. This instruction is erroneous in that it fails to inform the jury that they must further believe from the evidence, in so doing he was not exercising that degree of care that a boy of his age, intelligence and experience would exercise under the same or similar circumstances surrounding plaintiff's intestate at the time in question. This instruction is also erroneous in that it selects a single item of evidence or one fact claimed to have been disclosed by the evidence and states that a certain conclusion does not follow. West Chicago St. Ry. Co. v. Petters, 196 Ill. 298.
Instruction 7 told the jury that if plaintiff's intestate was guilty of any want of ordinary care which caused, or proximately contributed to his injury, then they should find the defendant not guilty. This instruction is erroneous in that it fails to take into consideration that plaintiff's intestate was a boy of 13 years of age and states the law as applicable to a person of mature years. While instruction No. 8 was not in the usual form, we are of opinion that it states the law correctly. Instruction 9 tells the jury that if the evidence is evenly balanced, or if they cannot say on which side the evidence preponderates, it is their sworn duty to find for the defendant. This form of instruction has been repeatedly condemned by the courts, and should not have been given. Wolczek v. Public Service Co., 342 Ill. 482; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164. In instruction 11, defendant attempted to inform the jury as to what constitutes wilful and wanton conduct, with which he is charged by the fifth count of the complaint, but confines his definition to gross want of care and an entire absence of want of care for the life, person or the property of others, in the operation of his automobile. An intentional disregard of a known duty, necessary to the safety of the person or property of another, such as exhibits a conscious indifference to consequences, makes a case of constructive wilfulness. Streeter v. Humrichouse, supra. This instruction is erroneous and should not have been given.
For the reasons indicated in this opinion the judgment of the circuit court of Vermilion county is reversed and the cause remanded for a new trial.
Reversed and remanded.