Parrino v. Landon , 6 Ill. App. 2d 375 ( 1955 )

MR. JUSTICE EOVALDI

delivered the opinion of the court.

This case comes to us on appeal from a default judgment entered by the circuit court of DuPage county which awarded the plaintiff, Joseph Parrino, the sum of $2,000 and the plaintiff, Marjorie Parrino, the sum of $15,000.

Suit in the trial court was filed by said plaintiffs against two defendants, Margaret Landon and Elmer R. Pike, for personal injuries and property damage arising out of an automobile accident. The complaint alleged that on the date of the accident the plaintiff Joseph Parrino was driving a certain automobile and that the plaintiff Marjorie Parrino was riding as a passenger therein and alleged that each of the plaintiffs were at all times in the exercise of due care and caution for their own safety. The complaint further charged that at the time and place of the accident the defendant Margaret Landon was driving a certain automobile owned by the defendant Pike with the knowledge and consent of Pike. It was charged that Margaret Landon was guilty of certain acts of negligence which caused the collision.

The defendant Margaret Landon was never served with summons and the .defendant Pike, although served with summons, did not enter any appearance in the action prior to the designated return date and the complaint was taken as confessed against him. He has appealed from the default judgment on the theory that neither the pleadings nor the proof support the judgment of the trial court.

The evidence at the hearing following the order of default against Pike supported all of the allegations with respect to the circumstances surrounding the accident, and in support of the allegation concerning the ownership of.the defendant’s car, both Mr. and Mrs. Parrino testified that they had learned from the defendant Landon that the car belonged to Mrs. Landon’s brother, the defendant Pike. The defendant Pike contends on this appeal that there were no allegations in the complaint nor .any evidence establishing negligence on his part nor was there any basis for imputing the negligence of the defendant Landon, the driver of his car, to him, because of the absence of any allegations in the complaint and the absence of any evidence in the record showing that the defendant Landon was the agent or servant of the defendant Pike at the time of the accident.

We believe that the decision of this case is controlled by the opinion of the Supreme Court in Gustafson v. Consumer Sales Agency, Inc., 414 Ill. 235. In that case which was an action for wrongful death, the complaint did not specifically allege the names of decedent’s next of kin nor did it allege that they had suffered pecuniary loss. The defendant did not raise any question in the trial court as to the sufficiency of the complaint, but raised it for the first time on appeal and we reversed a judgment for plaintiff on the grounds that the complaint was insufficient to state a cause of action and was insufficient to sustain a verdict. However, the Supreme Court allowed plaintiff’s petition for leave to appeal and reversed our judgment. The opinion of the Supreme Court thoroughly canvassed the leading earlier Illinois cases on the question of the sufficiency of complaints to sustain judgments where those pleadings had not been objected to in the trial court and also thoroughly discussed the statutory provisions pertaining thereto, particularly section 42(3) of the Civil Practice Act (Ill. Rev. Stat. 1953, Ch. 110, sec. 166(3) [Jones Ill. Stats. Ann. 104.042, subd. (3)]) and section 6 of the Amendments and Jeofails Act (Ill. Rev. Stat. 1953, Ch. 7, sec. 6 [Jones Ill. Stats. Ann. 107.031]). After a discussion of these cases and statutes, the Supreme Court held that even though the complaint in that case was technically insufficient so that a motion to dismiss in the trial court would have been sustained, the complaint was sufficient to indicate the grounds of liability sought to be imposed upon the defendant. The Supreme Court held that if a complaint indicated a ground of liability or, in other words, contained a defective statement of a good cause of action, objections to the complaint were waived if not made in the trial court. We, therefore, are of the opinion that the complaint and proof in the instant case are sufficient to sustain the judgment if they indicate the ground of liability sought to be imposed upon the defendant Pike.

The complaint charged, and the evidence tended to prove, that Mrs. Landon was driving Pike’s car with his permission. The question is whether this allegation and proof are sufficient to indicate a ground of liability against Pike. We are of the opinion that they are sufficient. In Howard v. Amerson, 236 Ill. App. 587, the complaint alleged that a car owned by Amerson was driven at the time of the accident by one Eobie who, it was alleged, was Amerson’s agent or servant. Eobie was never served with summons and the case was dismissed as to him. The defendant Amerson filed a plea of the general issue and also a special plea denying that Eobie was his agent or servant. In the course of the trial, counsel for defendant specifically admitted that Amerson was the owner of the car in question. The trial court directed the jury to find Amerson not guilty on the ground that plaintiff had failed to meet the burden of proof to show that Eobie was Amerson’s agent or servant. On appeal the Appellate Court reversed the judgment of the trial court and remanded the cause for a new trial. The Appellate Court reviewed many authorities, both from Illinois and from other jurisdictions, on the question of whether proof of ownership was sufficient to establish the fact of agency and said, page 592:

“This precise question seems never to have been passed upon in this State. In our opinion, the better reasoning supports the proposition that where the defendant puts in issue the question of the operation of the automobile, by his servant and the use of it in connection with his business, although the burden of proof throughout the trial of establishing the affirmative on those matters by a greater weight of the evidence remains with the plaintiff, a prima facie case is, nevertheless, made out on those questions by either the admission of ownership on the part of the defendant, or proof of such ownership by the plaintiff and, such prima facie case being made out on those questions by tbe plaintiff, tbe burden of proceeding witb tbe evidence is shifted to tbe defendant.”

In McCarty v. Yates & Co., Inc., 294 Ill. App. 474, tbe parties bad stipulated that tbe truck which was involved in tbe collision witb plaintiff’s car belonged to tbe defendant company. Defendant bad urged that there was no evidence that its driver was acting within tbe scope of its authority but tbe Appellate Court held that tbe case was controlled by Howard v. Amerson and held that tbe stipulation as to ownership made out a prima facie case of agency.

In tbe instant case both tbe allegations and the proof were that tbe car belonged to Pike and was being driven at tbe time of tbe accident by Mrs. Landon witb Pike’s permission. Under tbe doctrine of tbe above cases, this was sufficient to make out a prima facie case that Mrs. Landon was acting, at tbe time, as Pike’s agent or servant. The complaint and tbe proof were, therefore, sufficient to indicate a ground of liability against Pike and in accordance witb tbe bolding of tbe Supreme Court in tbe Gustafson case, tbe complaint and proof were sufficient to sustain tbe verdict.

Tbe judgment of tbe trial court, is, therefore, affirmed.

Judgment affirmed.