APPEAL from the Circuit Court of Champaign County; the Hon.
MARTIN E. MORTHLAND, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1954.
Defendant, Margart Laymon, is appealing from a judgment entered by the circuit court of Champaign County awarding damages in the amount of $5000 to plaintiff for personal injuries sustained in a collision between defendant's automobile and plaintiff's motorcycle. The direct appeal to this court is predicated on the ground that defendant's constitutional right to a trial by jury has been infringed by the operation of section 64 of the Civil Practice Act. Ill. Rev. Stat. 1953, chap. 110, par. 188.
The cause presents the issues of whether section 64 of the Civil Practice Act, when construed to preclude a jury trial where the demand for it is made for the first time after the cause has been remanded for a new trial, violates section 5 of article II of the Illinois constitution, and whether the findings of the trial court are properly supported by the evidence.
From the record it appears that in the original trial of this cause neither party demanded a jury, and the circuit court of Champaign County, after a full hearing, entered judgment for defendant. On appeal therefrom the Appellate Court reversed and remanded the cause on the ground that the trial court erred in finding plaintiff contributorily negligent. After the cause was reassigned for trial, defendant moved for a jury trial, and the circuit court denied the motion on the ground that it was barred by section 64 of the Civil Practice Act.
The evidence adduced before the court at the second trial was substantially the same as that presented at the first trial. At about noon on December 3, 1949, a dry, clear day, plaintiff, Wendell Reese, a minor, 19 years of age, was driving his motorcycle in a northerly direction on Prospect Avenue in the city of Champaign. This street, which runs north and south, intersects with University Avenue, which runs east and west. Defendant was driving her car in a southerly direction on Prospect Avenue, and made a left turn at the intersection onto University Avenue. In the course of that turn, her vehicle collided in the northeast corner of the intersection with plaintiff's motorcycle as he was proceeding straight ahead northward on Prospect Avenue across the intersection.
The evidence further reveals that as defendant approached that intersection from the north, she saw three girls, including her daughter, standing across the street on the southwest corner of Prospect and University Avenue, and sounded the horn in recognition. She slowed down to wait for a car which was approaching from the opposite direction to make a left turn west on University Avenue. Although she testified that she looked beyond this car, she did not see plaintiff, who was driving his motorcycle just behind that car, until an instant before the impact. She testified that when she saw him he had reached the intersection, and she "didn't have time to do anything before he hit."
It appears that plaintiff was operating his motorcycle behind the car that turned left onto University Avenue, and was in his proper traffic lane proceeding at a speed of 20 miles per hour, according to the testimony of several witnesses. Only the witness Nola Ebert, who was one of the girls with defendant's daughter, and under 15 years of age at the date of the collision, testified at the second trial that she recollected for the first time that plaintiff was driving at 35 miles per hour. The trial court, who heard and saw the witnesses, in his oral opinion expressed doubts concerning her credibility.
Plaintiff had his eyes focused straight ahead, and did not see the three girls on the southwest corner, nor the car driven by the witness Mathews, which was approaching the intersection from the east on University Avenue. Plaintiff had entered the intersection some 5 or 10 feet when defendant turned left in front of him with her car. He applied his brakes, but could not stop before the impact, which occurred in the northeast portion of the intersection.
The witness Hewardine, who was driving approximately 150 feet behind plaintiff in the same direction, also testified that plaintiff was already in the intersection when defendant made the turn in front of plaintiff and he collided with the right side of defendant's automobile.
As a result of the collision, plaintiff was in a coma until the following afternoon, and had to remain in the hospital for some 21 days, followed by a prolonged convalescence until about the middle of April 1950, when he was able to do some light work.
The foregoing evidence was analyzed by the trial court, and judgment was entered for plaintiff in the amount of $5000.
The propriety of that judgment may be determined by this court on a direct appeal since the constitutionality of a statute is in issue. (Ill. Rev. Stat. 1953, chap. 110, par. 199.) Defendant has contended that section 64 of the Civil Practice Act, as construed by the trial court to deny a jury trial when the demand therefor is made for the first time after the cause is remanded, violates section 5 of article II of the Illinois constitution. That constitutional provision states: "The right of trial by jury as heretofore enjoyed, shall remain inviolate; * * *." Although this constitutional right has been included in each of the several Illinois constitutions, none of them have defined the right of trial by jury. As construed by the courts, the provision means the right of trial by jury as it existed at common law, and as enjoyed at the adoption of the respective constitutions. (George v. People, 167 Ill. 447; People v. Bruner, 343 Ill. 146.) However, this provision of the constitution does not mean that a jury trial shall be had in each and every case (Stephens v. Kasten, 383 Ill. 127, 132,) nor does it preclude any and all restrictions on the exercise of the right. On the contrary, this court has upheld the legislative power to regulate trials by jury, and in Morrison Hotel and Restaurant Co. v. Kirsner, 245 Ill. 431, a provision of the Municipal Court Act requiring a party at the time of entering his appearance to file with the clerk a demand in writing for a jury, and to pay a $6 jury fee, was sustained.
Prior to the adoption of the present Civil Practice Act, section 60 of the Practice Act of 1907 provided that "In all cases in any court of record in this State if both parties shall agree, both matters of law and fact may be tried by the court." (Smith-Hurd Stat. 1933, chap. 110, par. 60.) This rule of practice was based on the theory that a jury trial would be had unless waived expressly or impliedly by going to trial before the court alone. (Juvinall v. Jamesburg Drainage Dist. 204 Ill. 106.) Consequently, it was held under this practice that a waiver of a jury does not extend to the second trial where the cause is remanded, for both parties are ...