¶1concurring: I agree that the judgment should be reversed and the cause remanded for the reasons stated in the opinion. I do not agree with the cases of Grinestaff v. New York Cent. R., 253 Ill. App. 589; O’Neall v. Blair, 261 Ill. App. 470, and Streeter v. Humrichouse, 261 Ill. App. 556, which hold that a general verdict in a personal injury case should be set aside where some counts of the declaration charge the defendant with negligence and other counts charge him with wilful and wanton conduct, there being no evidence to sustain the wilful and wanton counts.
¶2In the Grinestaff case, the court said, p. 596: 1 ‘ The cause went to the jury on all the counts in the declaration and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wilfully or wantonly and negligently at the same time.” The court there cites a number of cases in support of its position as stated in the quotation just made, hut I think none of the cases cited goes so far. The O’Neall and the Streeter cases, supra, announce the same rule, referring to the Grinestaff case.
¶3In the case of Guianios v. DeCamp Coal Min. Co., 242 Ill. 278, it was held that in an action for damages for negligently causing the death of a person, if the evidence shows that the defendant was guilty' of negligence, recovery might be had under a count charging wilfulness. In that case the court said (p. 281): “The declaration charged that the appellant ‘negligently, carelessly and wilfully’ did the things complained of, causing the death of Antonopoulos. The proof does not tend to show that the act was wilfully done, and counsel for appellant argues that there was a variance between the proof and the declaration, and that therefore the motion made at the close of plaintiff’s evidence for an instruction to find appellant not guilty should have been granted. In tort the plaintiff may prove a part of his charge if the averment is divisible, and proof of a part of the allegations, if sufficient to sustain a case, will sustain a judgment.” (Citing authorities.) “In this case, if the proof showed that the act was caused by the negligence of appellant, recovery could be had even though the negligence was not wanton or wilful.”
¶4In Levy v. Schikowski, 239 Ill. App. 447, which was a proceeding under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, 4 et seq., it appeared that the judgment under which the defendant was arrested on a capias, was rendered in a suit for damages for personal injuries. In that case the declaration was in two counts, in each of which it was held that they charged “the defendant with wilfully and negligently driving the automobile.” We there said (p. 451): “The declaration, verdict and judgment do not necessarily show that the defendant in the tort case was guilty of wilful negligence, as they, in fact, may have involved only the finding that the defendant was guilty of ordinary negligence. (Guianios v. DeCamp Coal Min. Co., 242 Ill. 279.)”
¶5In Van Meter v. Gurney, 240 Ill. App. 165, it was said (p. 186): “The rule is that where the declaration charges both wilful and ordinary negligence, even though the proof shows ordinary negligence and not wilful negligence, a recovery may be had on ordinary negligence. Guianios v. DeCamp Coal Min. Co., 242 Ill. 278, 281.” In Abbrassart v. Bouchard, 241 Ill. App. 484, the court quoted with approval from the Levy case, supra (239 Ill. App. 447.) In the Grinestaff case the basis of the decision seems to be that there is a radical distinction between a count charging one with negligence and another count charging wilful and wanton conduct. But in Walldren Express & Van Co. v. Krug, 291 Ill. 472, it is.held that there is not such a marked distinction between the two. In that case there were counts charging the defendant with negligence and a count charging that the defendant recklessly and wantonly operated a certain truck. The court said (p. 476): “One count of the declaration charged that the defendant failed to stop its automobile when danger was imminent and carelessly, recklessly and wantonly ran it upon and against the plaintiff. If the facts shown by the evidence-established the truth of this averment, the contributory negligence of the plaintiff would not relieve the defendant from liability for its wanton negligence.” (Citing authorities.) “Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury.” And continuing, the court discussed the meaning of the words “wantonness,” “wilfully” and “wilfulness,” and held that they have been used to express the same thing, and continuing said (p. 478): “Thus, in Lake Shore and Michigan Southern Ry. Co. v. Bodemer, supra (139 Ill. 596), ‘What is meant by “such gross negligence as evidences wilfulness?” It is “such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness.”- — 2 Thompson on Negligence, 1264, sec. 52.’ Again, in the same case: ‘WThat degree of negligence the law considers equivalent to a wilful or wanton act is as hard to define as negligence itself. ’ In Chicago City Ry. Co. v. Jordan, 215 Ill. 390, we said: ‘Where there is ... a degree of wilful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes wilful or wanton. In such a case there may be an actual intent to injure or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended.’ . . . There was no error, therefore, in the refusal to instruct the jury that there could be no recovery on the ground of wilful or wanton negligence. ’ ’ In that case it will be noted that there may be such a degree of negligence which the law would consider equivalent to a wilful and wanton act. So that the evidence may show in a given case that the defendant was guilty of negligence while the evidence might again show if the conduct of the defendant was more reckless that the degree of negligence would be equivalent to a wilful or wanton act.
¶6In my opinion, the judgment rendered in a personal injury case, where there are counts charging the defendant with what might be termed ordinary negligence, and a count or counts charging the defendant with such negligence as the law would hold to be equivalent to wilful and wanton conduct, a general verdict and judgment on the verdict in favor of plaintiff, might be sustained although the evidence was insufficient to sustain the wanton charge. One good count with supporting evidence is sufficient. Scott v. Parlin & Orendorff Co., 245 Ill. 460.
¶7Mr. Justice Matchett: I agree with the opinion of Mr. Presiding Justice O’Connor.