{ "id": 5135127, "name": "Arnold Steward, Plaintiff-Appellee, v. Lambert Bartley, Defendant-Appellant", "name_abbreviation": "Steward v. Bartley", "decision_date": "1955-02-24", "docket_number": "Gen. No. 9,983", "first_page": "208", "last_page": "213", "citations": [ { "type": "official", "cite": "5 Ill. App. 2d 208" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "314 Ill. App. 671", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3387763, 3386979 ], "opinion_index": 0, "case_paths": [ "/ill-app/314/0671-02", "/ill-app/314/0671-01" ] }, { "cite": "316 Ill. App. 283", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3392514 ], "opinion_index": 0, "case_paths": [ "/ill-app/316/0283-01" ] }, { "cite": "336 Ill. App. 533", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2425064 ], "opinion_index": 0, "case_paths": [ "/ill-app/336/0533-01" ] }, { "cite": "385 Ill. 245", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5304698 ], "opinion_index": 0, "case_paths": [ "/ill/385/0245-01" ] }, { "cite": "394 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472075 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/394/0071-01" ] } ], "analysis": { "cardinality": 432, "char_count": 7875, "ocr_confidence": 0.584, "pagerank": { "raw": 9.631859925310743e-08, "percentile": 0.5275149246152961 }, "sha256": "4f667723343de40f2032f566605927c9750b3b06f5347997e047ca59d79aac40", "simhash": "1:d8ca139c232458d7", "word_count": 1276 }, "last_updated": "2023-07-14T15:38:20.535492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Arnold Steward, Plaintiff-Appellee, v. Lambert Bartley, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE REYNOLDS\ndelivered the opinion of the court.\nThis is an appeal from a judgment of $10,000 entered, upon a verdict in favor of plaintiff for personal injuries, suffered by him while riding as a guest in an automobile being driven by defendant. Defendant filed a motion for new trial, which was denied. No motions in arrest of judgment or for judgment notwithstanding the verdict were filed.\nThe complaint consisted of one count charging defendant with wilful and wanton misconduct.\nThe principal ground for reversal urged by defendant is that the complaint is so fundamentally defective that it states no cause of action whatsoever, is wholly insufficient to support the judgment, and that the defect being fundamental, was not cured by verdict.\nDefendant concedes he failed to raise the question at any stage of the proceedings in the circuit court either' by motion, objection or otherwise. He argues, however, that the failure of a complaint to state any cause of action whatsoever may be raised for the first time on appeal, citing Lasko v. Meier, 394 Ill. 71 and Owens-Ilinois Glass Co. v. McKibbin, 385 Ill. 245. We need not decide whether those authorities are applicable here to enable defendant to challenge the sufficiency of a pleading for the first time on appeal because we are of the opinion that the complaint is sufficient to sustain a judgment after verdict.\nThe ground upon which defendant predicates his position is that there is an absence in the complaint of an allegation of plaintiff\u2019s freedom from wilful and wanton misconduct. Defendant relies upon the holding in Prater v. Buell, 336 Ill. App. 533. It was there held that a complaint charging wilful and wanton misconduct on the part of defendant was vulnerable on motion to dismiss because of the absence of allegations, express or implied, of plaintiff\u2019s freedom from contributory wilful and wanton misconduct.\nWe believe plaintiff\u2019s complaint meets the test announced in the Prater case. While it is true the complaint does not contain an express allegation of freedom on plaintiff\u2019s part from wilful and wanton misconduct, there are other allegations in the complaint equivalent thereto or from which the same may fairly be inferred. It is alleged that plaintiff was at all times in the exercise of due care for his own safety; that he warned defendant on several occasions prior to the accident to reduce speed and drive carefully; that nevertheless defendant operated the automobile in a wanton, wilful and malicious manner, and that plaintiff was injured as a direct and proximate result of defendant\u2019s wilful, wanton and malicious operation of the automobile.\nIn any event, the foregoing allegations are sufficient to sustain the judgment after verdict under the rule of aider by verdict. Defendant expressly traversed those allegations. The allegations of due care and caution on plaintiff\u2019s part, of warning communicated to defendant, his disregard thereof, and of wilful and wanton misconduct by defendant in the operation of the automobile, all of which were traversed by defendant, fairly imposed on plaintiff the burden of proving freedom on his part from wilful and wanton misconduct. Freedom from wilful and wanton misconduct on the part of plaintiff is fairly implied in and inferable from those allegations. Issue was joined. At worst plaintiff\u2019s freedom from contributory wilful and wanton misconduct was defectively stated. It follows that the omission of express allegations was cured by verdict. Lasko v. Meier, 394 Ill. 71.\nDefendant argues that since negligence and wilful and wanton misconduct are not synonymous, an allegation of absence of contributory negligence cannot be the equivalent of an absence of contributory wilful and wanton misconduct. The question is not whether they are equivalent but rather, whether after verdict the latter- is inferable from the former, taken with other allegations in the pleading. We hold it is.\nFurthermore, we are of opinion the provisions of sections 4 and 42 of the Civil Practice Act [Ill. Rev. Stats, eh. 110, \u00a7\u00a7 128,166; Jones Ill. Stats. Ann. 104.004, 104.042] apply with particular force to pleadings after verdict. The former enjoins that pleadings are to be liberally construed and the latter that a pleading that reasonably informs the opposite party of the claim or defense is not bad in substance.\nWe express no opinion as to the sufficiency or insufficiency of plaintiff\u2019s pleading on motion to dismiss made under section 45 of the Civil Practice Act [Ill. Rev. Stats, ch. 110, \u00a7 169; Jones Ill. Stats. Ann. 104.045],\nDefendant complains that the court erred in instructing the jury, at defendant\u2019s request, that plaintiff had the burden of proving freedom on his part from wilful and wanton misconduct. His theory is a restatement of his contentions respecting the sufficiency of the complaint. He argues that since, on his view, the complaint failed to negative contributory wilful and wanton misconduct, the instruction necessarily was one upon an issue not made by the complaint and answer. What we have said respecting the complaint disposes of this contention, even assuming defendant may complain of his own instruction. It is well settled he cannot do so.\nWe further observe that the fact defendant tendered the instruction is inconsistent with his argument, advanced for the first time in this court, that the issue of absence of contributory wilful and wanton misconduct on the part of plaintiff was not presented by or infer-able from the pleadings.\nDefendant argues that the trial judge erred in admitting certain expert opinion testimony respecting plaintiff\u2019s mental and physical condition. The stated ground of error is that it was not \u201cthe best evidence.\u201d Defendant relies upon Hardware Mut. Casualty Co. v. Baldus, 316 Ill. App. 283. In that case the court held that a written estimate of repairs to a damaged automobile was not competent evidence of damages and repairs as against the repair bill itself. We fail to see the applicability here of the holding and rule of evidence reported in that case. The \u201cbest evidence rule\u201d applies exclusively to documentary evidence. The evidence of which defendant complains here was expert opinion testimony.\nLastly, defendant argues that the judgment should be reversed because the verdict was against the weight of the evidence. We will assume, though he does not so state, that defendant means \u201cmanifest weight of the evidence.\u201d Goodrich v. Sprague, 314 Ill. App. 671. Defendant\u2019s contention in this regard is predicated upon the assumption that the only evidence of wilful and wanton misconduct was excessive speed. The assumption is unwarranted. We have reviewed the evidence carefully. Without setting the evidence forth in detail, there is sufficient from which the jury could reasonably have concluded that defendant had been drinking before embarking upon the highway; that he drank a can of beer while driving and before reaching the scene of the accident; that he was intoxicated in measure; that he was driving at a speed of 80 to 90 miles per hour; that he disregarded warnings from plaintiff and another passenger to reduce his speed; that there was some fog and that though familiar with the road in question, defendant failed to reduce speed at or seek to turn with a curve in the road and as a result the car proceeded directly ahead and off the highway at the entrance to the curve and at great speed. We are of the opinion the verdict was not against the manifest weight of the evidence.\nThe judgment of the circuit court is affirmed.\nAffirmed.", "type": "majority", "author": "MR. JUSTICE REYNOLDS" } ], "attorneys": [ "Keith F. Scott, of Macomb, for appellant.", "J. Dixson McRaven, and Gumbart, Grigsby & Gumbart, of Macomb, for appellee." ], "corrections": "", "head_matter": "Arnold Steward, Plaintiff-Appellee, v. Lambert Bartley, Defendant-Appellant.\nGen. No. 9,983.\nThird District.\nFebruary 24, 1955.\nReleased for publication March 14,1955.\nKeith F. Scott, of Macomb, for appellant.\nJ. Dixson McRaven, and Gumbart, Grigsby & Gumbart, of Macomb, for appellee." }, "file_name": "0208-01", "first_page_order": 224, "last_page_order": 229 }