Appeal by defendants from the Circuit Court of Adams county;
the Hon. FRED G. WOLFE, Judge, presiding. Heard in this court at
the May term, 1951. Reversed and remanded. Opinion filed May 31,
1951. Modified opinion filed June 27, 1951. Released for
publication June 28, 1951.
MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment entered in the circuit court of Adams county in favor of the plaintiff, Fred E. Hyde, and against the defendants, Montgomery Ward & Co., Inc., a corporation, and Leonard Hanlin.
Plaintiff was injured in an automobile accident arising out of the alleged negligence of Leonard Hanlin, the agent and servant of Montgomery Ward & Co., Inc., and the alleged negligence of one Lynnard Cates, the driver of another motor vehicle. Cates was not joined as a party to the suit.
In their answer to the complaint the defendants set out that plaintiff had received the amount of $4,500 from Cates and had executed a covenant not to sue him; that if the allegations of the complaint were true the defendants and Cates were joint tort-feasors and the amount received by plaintiff for his injuries under said covenant should be deducted from, credited against, and in mitigation of the damages plaintiff was entitled to recover, if any.
Plaintiff filed a motion to strike this part of the answer, which the trial court granted.
During the course of the trial, the court refused to allow any evidence concerning the payment to the plaintiff by Cates, or concerning the covenant not to sue. On cross-examination, plaintiff was asked whether or not payment had been made to him by Cates, but the court sustained an objection to the question. Outside the presence of the jury, defendants' counsel made their offer to produce evidence of payment and the covenant not to sue.
The jury returned a verdict in favor of the plaintiff and against both the defendants in the amount of $3,000, and judgment was entered on the verdict.
Thereafter defendants filed a petition setting out the payment referred to, and praying that the defendants be allowed to offer evidence, and that if upon the hearing of the petition the court should determine that any payment had been made by Cates to plaintiff on account of his injuries, the amount of such payments should be credited upon the judgment. Plaintiff filed a motion to strike the petition. The motion was sustained and defendants' petition was denied. This appeal followed.
The main question to be decided on this appeal is whether or not the court should have admitted upon the trial of this cause the evidence of the payment to the plaintiff and the execution of the covenant not to sue.
There has been considerable conflict among the authorities on this question. The cases are collected and analyzed in Aldridge v. Morris, 337 Ill. App. 369, decided May 10, 1949, and to which opinion this court referred in the case of New York, C. & St. L.R. Co. v. American Transit Lines, 339 Ill. App. 282. In that case we said, at page 286:
"The only other alleged error is that `The trial court erred. . . . in reducing the amount of the verdict by $2,000 to reflect the amount received by plaintiff from the two defendants who were dismissed.'
"It appears that this $2,000 was received by plaintiff from two other defendants who, before trial, were dismissed out of the case on the plaintiff's motion, plaintiff having given them a covenant not to sue. No evidence of such payment was presented to the jury, but the fact of such payment was apparently conceded at the time of the entry of the judgment.
"In support of such contention plaintiff cites Devaney v. Otis Elevator Co., 251 Ill. 28. Defendant cites City of Chicago v. Babcock, 143 Ill. 358; Garvey v. Chicago Rys. Co., 339 Ill. 276; Puck v. City of Chicago, 281 Ill. App. 6; Vandalia R. Co. v. Nordhaus, 161 Ill. App. 110, 104 A.L.R. ...