Petition for leave to appeal from order granting new trial,
Superior Court of Cook county; the Hon. WALTER R. O'MALLEY,
Judge, presiding. Heard in the first division of this court for
the first district at the October term, 1952. Order reversed and
cause remanded with directions. Opinion filed February 2, 1953.
Released for publication February 20, 1953.
MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
The plaintiff, James P. Hall, brought suit under the Federal Employers' Liability Act (45 U.S.C.A. 51-60) to recover damages for personal injuries sustained while he was employed as a brakeman by the defendant, Chicago and North Western Railway Company, a common carrier engaged in interstate commerce. The suit contained two causes of action. Under count 1 plaintiff sought to recover damages for injuries sustained on January 21, 1947; that count was dismissed before the conclusion of the trial on plaintiff's motion and is not involved in this petition for leave to appeal. Under the second count he sought to recover $90,000 as damages for injuries sustained in a switching operation on August 11, 1947 at the Nachman Company premises in Chicago. In the course of the trial an amended complaint was filed, over defendant's objection, for the sole purpose of increasing the ad damnum to $285,000. Defendant's answer, which was allowed to stand as the answer to the amended complaint, denied the charges of negligence and alleged that plaintiff's contributory negligence was the sole proximate cause of the accident. Trial by jury resulted in a verdict in favor of plaintiff for $50,000. Thereafter the court allowed plaintiff's motion for a new trial, which is the basis for the petition filed here for leave to appeal from that order, in accordance with section 77 of the Civil Practice Act [Ill. Rev. Stats. 1951, ch. 110, par. 201; Jones Ill. Stats. Ann. 104.077].
In his final address to the jury defendant's counsel made the following argument: "I say again if you believe that the opposition here has proved by a preponderance of evidence that the defendant is guilty of negligence which caused these injuries, then you are going to have to award him a verdict, and whatever amount he receives by way of a verdict in this case is not subject to Federal income tax." This provoked the following exchange of comments:
"Mr. Dooley [counsel for plaintiff]: I object to that.
"The Court: That may be stricken.
"Mr. Warden [counsel for defendant]: That is the law, your Honor.
"The Court: That may be stricken.
"Mr. Dooley: Let the jury be instructed to disregard it.
"The Court: They are so instructed.
"Mr. Warden: Well, under the Court's ruling, ladies and gentlemen, simply disregard what I have said to you about taxes."
Subsequently, on the hearing of plaintiff's motion for a new trial, the court informed the respective counsel that he wanted "both sides to * * * prepare a memorandum in regard to this statement made to the jury. That is the only part of the case I am interested in. So far as the rest of it is concerned, I think both sides had a very fair trial. I am only interested in this one particular phase." Pursuant to this request, extensive briefs were submitted on behalf of the parties, and thereafter, in ruling on plaintiff's motion, the court stressed that "it is not the intent of this court to comment or say anything in derogation of the conduct of defendant's counsel as this court feels that he tried this matter as a gentleman. This court feels in persisting in his remarks, making remarks in regard to the deductions in reference to normal income tax returns, was prejudicial error and therefore this court feels that it is his duty to grant a motion for new trial in this matter. That is all." It thus appears that the only ground or reason for the granting of a new trial was counsel's remark to the jury that the amount plaintiff received by way of a verdict was not subject to federal income tax. The trial judge was satisfied with the finding of the jury on all other issues. A similar situation arose in Kavanaugh v. Washburn, 320 Ill. App. 250. There the jury returned a verdict of not guilty, and the plaintiff filed a motion for a new trial which was granted. The reasons assigned in writing by the trial judge were based entirely upon instructions given on behalf of the defendant. The reviewing court pertinently observed that "since the reasons assigned by the trial court for the granting of the motion for new trial deal entirely with instructions, it is assumed the trial court was satisfied with the finding of the jury on questions of fact," and thereupon considered and decided the appeal solely on the instructions objected to.
Plaintiff's counsel impliedly concedes that the only ground or reason assigned by the trial court for granting a new trial was counsel's remark to the jury about income tax, but he invokes the rule enunciated in McNulty v. Hotel Sherman Co., 280 Ill. App. 325, and Rowoldt for Use of Flanagan v. Cook County Farmers Mut. Ins. Co., 305 Ill. App. 93, that the reviewing court is not confined to the ground or reason stated by the trial court for the allowance of a new trial and may examine the complete record for any other errors committed. However, in the Rowoldt case the court added that "we encourage the practice in the trial court of stating its reasons as an aid to this court," citing Rule 1 of the Appellate Court, Rule 36 of the Supreme Court, and Illinois Revised Statutes 1939, ch. 110, par. 259.36 [Jones Ill. Stats. Ann. 105.36]. The principal other questions raised or assigned as error by plaintiff in this proceeding involve the court's instructions and other portions of defendant counsel's argument to the jury, which will be considered later.
[3-5] Plaintiff relies largely on the discretionary power of the trial judge to grant a new trial. We are not unmindful of the rule and cases which hold that the trial judge is allowed broad discretion in granting motions for a new trial, and that his action will not be reversed on appeal except in case of clear abuse of such discretion; but this rule, like all others, has its limitations. A judge is not empowered to set aside a verdict in any case simply because he does not agree with it. The case at bar presents the question whether the trial court was correct in a ruling of law on which its order granting a new trial is based; defendant has here presented questions which fairly challenge the propriety of the order, and we would not be warranted in disregarding them by simply reiterating the principle that a reviewing court should not interfere with the discretion of the trial judge. In Wettaw v. Retail Hdw. Mut. Fire Ins. Co., 285 Ill. App. 394; the court pertinently observed: "That the act [Section 77 of the Civil Practice Act] is designed to promote justice, and to prevent a verdict, warranted by the record and justified by the evidence, from being set aside and lost to the party who was fairly entitled thereto, and such litigant forced to undergo the hazards of another trial with its further incidents of delay and expense, does not admit of argument. We think it clear that where a party litigant feels aggrieved at the order of a trial court in setting aside a verdict in his favor, and presents to a reviewing court, upon a petition for leave to appeal from such order, grounds which are reasonably debatable and fairly challenge the propriety of the grant of the new trial, the reviewing court should permit the appeal to be taken. Such an interpretation of section 77 is in consonance with justice and in accord with the evident spirit of the act. * * * If the rule were otherwise, then when a new trial was awarded solely upon the ground that the verdict was contrary to the manifest weight of the evidence, section 77 would be meaningless and of no avail to the complaining party however much he might be injured by the ruling. We think the section contemplates that where such ground is presented, the reviewing court should ascertain whether the record raises a fair question as to the propriety of the court's ruling, though it be on matters of fact, and if it does, then grant leave to appeal from the order awarding the new trial. Of course where a question is reasonably presented as to whether the court erred as a matter of law in so ruling, the right to review cannot be denied. Adamsen v. Magnelia, supra [280 Ill. App. 418]; Randall v. Randall, 281 Ill. App. 169." (Emphasis supplied.)
Section 77 contemplates that the reviewing court will grant a petition for leave to appeal to determine whether the trial court exceeded or abused its judicial discretion. There should and must be some opportunity afforded litigants to have these issues determined; and if petitions for leave to appeal are to be brushed aside on the ground that the order granting a new trial was within the sound discretion of the court, section 77 would accomplish no practical purpose. Cases cited by plaintiff in support of his contention as to the broad discretionary power of the court may be readily distinguished from the case at bar. In Gavin v. Keter, 278 Ill. App. 308, the bill of exceptions was silent as to the ground on which a new trial was granted, and the appealing party was unable to advise the reviewing court as to the reasons which influenced the trial judge in entering the order. Couch v. Southern Ry. Co., 294 Ill. App. 490, was another case where the basis of the award of a new trial did not appear of record. The Appellate Court properly held that it was incumbent upon petitioner to show that the trial court had abused its discretion, and since the reason or reasons for the granting of a new trial did not appear of record, the reviewing court was impelled to hold that it could not disturb the order of the trial court. The same situation was presented in Village of La Grange v. Clark, 278 Ill. App. 269. In In re Estate of Velie, 318 Ill. App. 550, and in Wagner v. Chicago Motor Coach Co., 288 Ill. App. 402, new trials were granted because the trial judges were dissatisfied with the ...