On August 18, 1953, the instant complaint, consisting of two counts, was filed in the circuit court of Iroquois county. Subsequently and on April 17, 1954, an amended complaint was filed. In count one of the amended complaint Samuel D. McCullough sought to recover from defendant, Howard Orcutt, damages for personal injuries received by him and for other expenses alleged to have been incurred by him as a result of an automobile accident which occurred on August 21, 1951. This count alleged that plaintiff was a guest passenger in a car then being driven by the defendant, Orcutt, in a westerly direction on U. S. Highway No. 24; that the Orcutt car came into collision at the interesction of U. S. Highway No. 24 and Illinois State Highway No. 49 with a motor truck owned by the Eastern Illinois Clay Company and then operated by its employee and servant, James J. Wilson, now deceased, in a southerly direction on said Illinois State Highway No. 49.
The second count of the amended complaint was on behalf of Hazel McCullough, who was the wife of Samuel D. McCullough. She was not an occupant of either vehicle involved in, or was she present at, the collision, but her cause of action was predicated upon the alleged fact that she suffered a miscarriage after the accident, caused by the shock she sustained as a result of the injuries to her husband.
The defendant on October 9, 1954, filed his answer bnt no further steps were taken in the case until November 15, 1955, at which time the defendant filed his motion for leave to file a supplemental answer, a copy of the proposed supplemental answer accompanied said motion for leave to file. The trial court denied leave to file and the issues made by the amended complaint and answer were submitted to a jury resulting in a verdict, as to count one, in favor of the plaintiff, Samuel D. McCullough, for $12,500. As to the second count, the jury returned a verdict finding the defendant not guilty. After overruling all post-trial motions, judgments were rendered on the verdicts and the record is before us for review upon the appeal of the defendant, Howard Orcutt. The plaintiff in the second count, Hazel McCullough, has not appealed.
In count one of the amended complaint, the wilful and wanton misconduct charged against the defendant was (a) failure to stop and await traffic already in the intersection; (b) failure to allow the motor vehicle already in the intersection to pass out of the same before he entered it; (c) failure to keep a proper lookout; (d) driving at an unreasonable and excessive speed; (e) operating the motor vehicle with defective brakes; and (f), driving his car into the intersection when it was not clear of traffic.
In this count plaintiff charged that one or more of the aforesaid acts or omissions resulted in injuries to himself and that these alleged wilful and wanton acts caused his wife to suffer shock, strain and anxiety, and to become seized with nervous disorders, physical illness, premature labor pains, and, being pregnant, to miscarry and deliver a stillborn child. Plaintiff then alleged that by reason of the shock, strain, anxiety, nervous disorders, physical illness and miscarriage of his wife, he was required to expend large sums of money for doctor bills, hospital bills, nursing care and attention for his wife, and for funeral expenses and for the purchase of a burial lot for his stillborn child. The prayer of this count was for damages in the amount of $10,000, which, after the verdict brought in by the jury in the amount of $12,500, was amended, by leave of court, for the amount of the verdict as returned by the jury.
Counsel for appellant insists (1) that the evidence shows, as a matter of law, that the defendant was not guilty of any wilful and wanton misconduct and therefore the trial court erred in denying defendant’s motion for an instructed verdict; (2) that the trial court erred in allowing the plaintiff to introduce incompetent and prejudicial evidence relative to the injuries alleged to have been sustained by his wife and the expenses which the plaintiff was required to pay for her hospital and doctor bills and for the funeral expenses and burial lot for the stillborn child; (3) that a covenant to terminate certain litigation against the administrator of the estate of the said James J. Wilson and his employer, Eastern Illinois Clay Company, was a general release, and not only released Wilson’s estate and his employer but also the defendant as a joint tort-feasor.
Counsel for appellee insists that the evidence discloses a factual situation which presented a question for the jury to decide whether appellant was or was not guilty of wilful and wanton misconduct; that the verdict of the jury finding the defendant not guilty as to the claim of Hazel McCullough obviated any error committed by the court in the admission of incompetent and prejudicial evidence, and, finally, that the instrument designated as a covenant to terminate litigation was not a general release but amounted only to a covenant not to sue.
It is well established that on a motion for a directed verdict or for a judgment notwithstanding the verdict, the court does not weigh the evidence. It may properly consider only the evidence and the inferences to be drawn therefrom which are most favorable to the plaintiff, and it is only when there is no evidence tending to prove the plaintiff’s case that the court can grant either a motion for a directed verdict or for a judgment notwithstanding the verdict. (Lindroth v. Walgreen Co.,
U. S. Highway 24 is a paved highway running in an easterly and westerly direction. Illinois Route 49 is also a paved highway and runs north and south. Route 24 is a preferential highway and there are no stop signs on it for traffic going east and west, but there are stop signs on Route 49 for traffic going north and south. At about nine o’clock on the morning of August 21, 1951, appellant was driving his ear in a westerly direction on Route 24 accompanied by appellee and two other guest passengers, Ralph Knight and Harold Gossett. Appellee was riding in the front seat with appellant who was driving the car and the other two guests were riding in the rear seat. Hazel McCullough, wife of appellee and plaintiff in count two of the amended complaint was not present in the car but was at her home in Watseka. Appellant entered Route 24 at a point about 1,000 feet east of the intersection where the accident occurred and for two blocks or more in each direction from the intersection, there were filling stations, restaurants and other small business establishments on both sides of Highway 24.
The intersection of these highways is located just west of the corporate limits of Crescent City, a village having a population between three and four hundred inhabitants. The motor truck driven by James J. Wilson was loaded with tile.
The evidence tends to prove that Mr. Wilson, the driver of the motor truck, stopped at the stop sign on the north side of Route 24 and then, after looking in both directions, proceeded south across Route 24. Appellant first saw the truck when one of his guests, Harold Gossett, yelled, “Lookout! there’s a truck.” At this time appellant was between 140 and 160 feet from the intersection and traveling at an approximate speed of 60 miles an hour, according to the testimony of two filling station attendants who saw his car approaching the intersection. Appellant and his passengers, Knight and Gossett, testified he was going about 35 to 40 miles an hour and appellant testified that he first saw the truck when Gossett shouted his warningthat he immediately applied his brakes and skid marks were observed on the pavement for approximately 75 feet. His car struck the truck about in the middle of the intersection. It was a clear, bright day, the pavement was dry and the view in the direction he was traveling was clear and unobstructed and he was familiar with the intersection, as he had lived in that community for several years and had driven on Route 24 on numerous occasions. A traffic survey made prior to the accident at this intersection showed a traffic count of 275 vehicles per hour passing through the intersection on a daytime setup. This would amount to one car using the intersection approximately every thirteen seconds.
We are asked to hold, as a matter of law, that the foregoing evidence shows the defendant was not guilty of wilful and wanton misconduct. Myers v. Krajefska,
Counsel for appellant argues that appellee’s case was based solely upon speed and that speed alone cannot be the basis for wilful and wanton misconduct. However, as we view the evidence, speed is not the only circumstance to he taken into consideration in determining whether or not defendant, in the instant case, was guilty of wilful and wanton misconduct. In addition to speed, there is also the defendant’s failure to keep a proper lookout, as he testified he did not see the truck entering the intersection until he was within 140 to 160 feet of the intersection and then not until his attention was called to it by one of his guest passengers. The evidence fails to reveal any reason why he should not have seen the truck when he was much farther from the intersection. There is also the factor that this intersection was heavily traveled, that it was in a built-up section of the highway and that defendant was familiar with its location and the surrounding territory.
Signa v. Alluri,
In view of the principles announced in the foregoing cases and in the recent case of Amenda v. Suits,
Under paragraphs 6, 7 and 8 of count one of the amended complaint, appellee sought to recover for the expenditures which he made for doctor bills, hospital bills, nursing care for his wife and for funeral expense and the cost of the burial lot for the premature-born baby. He alleged that his wife was pregnant and that as a result of the injuries which he sustained in the collision in question his wife suffered shock, strain and anxiety, and became so emotionally upset that she miscarried and gave birth to a stillborn child.
Over the objection of counsel for appellant, appellee testified as to the sums which he paid for the various items heretofore mentioned, and introduced into evidence, over the objection of appellant, receipted statements for these expenses, which totaled a substantial sum. It was error for the court to admit this testimony relative to such matters and the admission of such incompetent evidence necessitates the reversal of this judgment.
In Phillips v. Dickerson,
The plaintiffs in both the Phillips and Braun cases, supra, were denied a recovery because the court held that liability could not be predicated on fright, terror, emotional shock, distress or anxiety, unaccompanied by a physical injury sustained at the same time. In the instant case, the plaintiff is the husband of the party who suffered these distresses and he seeks, as elements of the damage he sustained, to recover the several sums he expended for hospital and doctor bills, nursing expense for his wife, funeral expense for his stillborn child and the cost of a burial lot. In Braun v. Craven,
It is finally insisted by counsel for appellant that the trial court erred in denying defendant leave to file his proposed supplemental answer. This supplemental answer averred that the plaintiffs, Samuel D. McCullough and Hazel McCullough, had, on July 1, 1952, as plaintiffs, filed in the circuit court of Iroquois county another suit against the estate of James J. Wilson, deceased, Pauline Wilson, administrator thereof, and Eastern Illinois Clay Company, a corporation, and attached a copy thereof to the proposed supplemental answer. This proposed supplemental answer then averred that the other suit involved the same occurrences as are set out in the present suit and that on October 26, 1954, which was after the defendant’s original answer in the instant case was filed, the plaintiffs in the other suit made, executed and delivered a certain instrument in writing, which, omitting the certificate of acknowledgment, is as follows, viz.:
“State of Illinois'!
r Iroquois County J
SS
In the Circuit Court
“Samuel D. McCullough and
Hazel McCullough,
Plaintiffs,
vs.
“The Estate of James J. Wilson,
Deceased, Pauline Wilson,
Administrator, etc., and
Eastern Illinois Clay Company
of St. Anne, Illinois, A
Corporation,
Defendants.
Law No. 28471
“COVENANT TO TERMINATE LITIGATION
“Whereas, the above captioned Case was instituted by the Plaintiffs for recovery of personal injuries sustained by Samuel D. McCullough and for incidental damages alleged to have resulted therefrom, and Whereas the said Plaintiffs have been paid the sum of Seventeen Hundred ($1700.00) Dollars, receipt whereof is hereby acknowledged, to terminate the said cause above captioned, for and in consideration of said payment, Samuel D. McCullough and Hazel McCullough, his wife, each in his or her own right, and as spouse of the other, hereby covenant and agree to cause an Order to be entered in tbe above captioned cause dismissing tbe said cause at tbe cost of tbe Plaintiffs and at the prejudice of the Plaintiffs as soon as disposition of other pending litigation growing out of the same facts and circumstances has been tried and disposed.
“Dated this 26th day of October A.D. 1954.
“/S/ Samuel McCullough (Seal)
“/S/ Hazel McCullough (Seal)”
The complaint in the suit of Samuel D. McCullough v. The Estate of James J. Wilson, Deceased, which was made a part of the proposed supplemental answer alleged that on August 21, 1951, James J. Wilson was operating a motor vehicle southerly on Illinois State Highway No. 49, approaching the intersection thereof with U. S. Highway No. 24 immediately west of Crescent City, Iroquois county; that the plaintiff, Samuel D. McCullough, at the time and place was riding as a passenger in an automobile operated by Howard Orcutt westerly on U. S. Highway No. 24, approaching that intersection; that Samuel McCullough was a guest in the Orcutt automobile and was exercising due care for his own safety; that James J. Wilson was then the agent of Eastern Hlinois Clay Company, a corporation; that U. S. Highway No. 24 was a preferential highway, stop signs having been placed on Illinois Highway No. 49 directing traffic to stop before entering the intersection; that it was the duty of James J. Wilson to so operate the said motor truck as not to injure others lawfully using the highway, to stop before entering the intersection and to wait until he could enter it with safety and without injuring persons lawfully using U. S. Highway No. 24; that James J. Wilson did one or more of certain alleged negligent acts, thereby causing the injuries of the plaintiff, Samuel D. McCullough, and because of the alleged negligent conduct of James J. Wilson the truck driven by him was driven in front of the automobile of Howard Orcutt, thereby causing a collision, and as a direct and proximate result of the alleged negligent conduct of James J. Wilson while operating the truck as the agent of the Eastern Illinois Clay Company, the plaintiff, Samuel D. McCullough, was injured.
It was the contention of appellant in the trial court and it is his contention in this court that James J. Wilson, the driver of the truck proceeding southerly on Illinois State Highway No. 49, and his employer, Eastern Illinois Clay Company of St. Anne, a corporation, were tort-feasors; that appellant Orcutt is also a tort-feasor and that the acts of all three tort-feasors contributed to cause McCullough’s injuries; that the covenant executed by appellant and his wife released not only the tort-feasors, James J. Wilson and the Eastern Illinois Clay Company, but must be held as a matter of law to have released the defendant in the instant suit, Howard Orcutt, and operates as a bar to the prosecution of the instant action. In denying leave to file said proposed supplemental answer the trial court held otherwise and we agree.
In the recent case of Hulke v. International Mfg. Co.,
In the instrument under consideration in the Hulke case, which the court held to be a convenant not to sue and not a release, the words “release,” “discharge,” “full settlement” or “satisfaction” did not appear therein except where it was stated it was not intended as a release or discharge or as an accord or satisfaction. The same is true of the instrument here, which the defendant urges is a general release. The legal effect of an instrument such as is here involved must be construed so as to carry out the intention of the parties and this intention is to be sought in the language of the instrument when read in the light of the circumstances surrounding the transaction, and the court which interprets the instrument must place itself as nearly as possible in the position of the parties when they drafted and executed the document. (Hulke v. International Mfg. Co.,
In the instant case the instrument is designated “Covenant to Terminate Litigation.” Since the suit had already been commenced, this was undoubtedly the reason it was so designated, rather than a “Covenant Not to Sue.” The instrument recites that it is conditioned upon the disposition of other pending litigation growing out of the same facts and circumstances that caused it to be given. In other words, its legal effect was to be held in abeyance pending the disposition of other litigation arising out of the same accident. The amount paid, $1,700, when considered in connection with the serious injuries sustained by the plaintiff, as shown by this record, certainly does not indicate full and adequate compensation to him.
The recitals in this instrument tend to repel a presumption of satisfaction in full. It is clear from a reading of this instrument and a study of the facts and circumstances surrounding its execution that it was not the intention of the parties that it should operate as a general release, but rather that the litigation pending against the administrator of the estate of James J. Wilson and his employer would be disposed of when the instant suit was concluded. This instrument is just what it says it is, a covenant to end litigation.
In New York, C. & St. L. R. Co. v. American Transit Lines,
In Aldridge v. Morris,
In De Lude v. Rimek,
In the instant case it was insisted by appellant in the trial court that the instrument here involved was a release. The trial court held it was not and, in our opinion, did not err in this regard. For admitting incompetent evidence, as herein pointed out, the judgment appealed from is reversed and the cause remanded to the circuit court of Iroquois county for a new trial.
Reversed and remanded.