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Fulford v. O'connor

OPINION FILED SEPTEMBER 23, 1954.

DAVID E. FULFORD, APPELLANT,

v.

JOHN J. O'CONNOR ET AL., APPELLEES.



APPEAL from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

Plaintiff, David E. Fulford, brought an action against John J. O'Connor and Anthony J. Brankin, to recover damages for false imprisonment and malicious prosecution. The jury returned a general verdict awarding the plaintiff $4000 damages. Upon a special interrogatory submitted to them, the jury also found specially that the conduct of the defendants was not "wilful and wanton, such as to show malicious intent on their part." Defendants moved for judgment notwithstanding the verdict upon several grounds, of which the only appropriate one is that the evidence was insufficient to support the verdict. Defendants also moved for a new trial. The trial court granted the former motion and on April 10, 1953, entered judgment for the defendants. No disposition was made of the motion for new trial. On April 23 plaintiff moved to vacate the judgment for the defendants, on several grounds, of which we need only concern ourselves with the following: "2. The entry of said judgment notwithstanding the verdict was in violation of section 5 of article 2 of the Constitution of the State of Illinois and that plaintiff was thereby deprived of his right to trial by jury." This motion was overruled, and the plaintiff appeals. He brings his appeal here on the theory that the case involves a construction of the Illinois constitution. (Ill. Rev. Stat. 1953, chap. 110, par. 199.) Defendants challenge our jurisdiction of the appeal.

The basis of the plaintiff's contention is that in a jury trial at common law there was no such thing as a motion for judgment notwithstanding the verdict which raised the question of the existence of evidence to sustain the verdict. A motion by that name existed, but it was available only to the plaintiff, and then only upon the basis of an insufficiency in the defendant's pleadings.

Authorization for the trial court to enter judgment n.o.v. for the defendant on the ground that plaintiff's evidence is wholly insufficient to go to the jury is found in section 68 of the Civil Practice Act and Rule 22 of this court. (Ill. Rev. Stat. 1953, chap. 110, pars. 192, 259.22.) Section 68(3)a provides: "* * * if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury * * *. If the court shall then decide as a matter of law that the party requesting the directed verdict was entitled thereto, the court shall enter its decision on the record and order judgment in accordance with such decision, notwithstanding the verdict entered, * * *." Section 68(1) provides for entry of judgment n.o.v. without a prior motion for directed verdict, and Rule 22 states: "The power of the Court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the Court to direct a verdict without submitting the case to the jury."

The plaintiff apparently concedes that these provisions authorize the action of the trial court here. He did not at any point below challenge their validity, and he expressly states that he does not base this appeal upon the supposed invalidity of a statute. Our jurisdiction therefore attaches, if at all, because the case involves a construction of the constitution.

Defendants assert (quoting from Perlman v. Thomas Paper Stock Co. 378 Ill. 238, 241,) that "Where a judgment or decree is attacked on the ground that its enforcement will deprive the one against whom it is sought to be enforced of some constitutional right, as, the right of trial by jury, or the taking of property without due process of law, etc., no constitutional question is presented to authorize a direct appeal to this court. The question involved in such case is the validity of the judgment or decree and not a constitutional question within the meaning of the statute authorizing appeals direct to the Supreme Court."

The formula thus invoked is a familiar one. (See: e.g., Cooper v. Palais Royal Theatre Co. 320 Ill. 44, 49; Albrecht v. Omphghent Township, 324 Ill. 200, 202-203.) Properly understood, however, it does not defeat jurisdiction of this appeal. It is, of course, clear from the language of the constitution and of the statute conferring direct appellate jurisdiction on this court that we are not limited to considering the validity of statutes to the exclusion of constitutional issues which arise otherwise. (See: Ill. Const., art. VI, sec. 11; Ill. Rev. Stat. 1953, chap. 110, par. 199.) Our jurisdiction, however, is not defined in terms of the mere presence of constitutional questions, or of the violation of constitutional provisions. It requires that "a construction of the constitution" be involved. Consequently we decline to review cases raising propositions which have already been settled adversely to the appellant, (see First Nat. Bank v. Village of South Pekin, 371 Ill. 605; O'Connor v. Rathje, 368 Ill. 83,) and similarly we do not customarily entertain a direct appeal merely to correct the court below when it has allegedly ignored or misconstrued a constitutional provision whose main lines have already been drawn by our decisions. (See Saxmann v. Allen, 410 Ill. 31; People v. Savanna Lodge, 407 Ill. 227; People v. Martens, 338 Ill. 170; cf. Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523; People v. Martin, 382 Ill. 192.) It is this consideration which the rule invoked by defendants is intended to express.

In the present case, however, we do not regard plaintiff as contending merely that the trial court erred in entering judgment n.o.v. because there was sufficient evidence to go to the jury. That, of course, would not involve a construction of the constitution. His objection is to the existence of any power in the trial court to enter such a judgment. Defendants suggest that in any event the question raised has already been settled. It is true that past decisions have assumed that trial courts possess the power which is here challenged, but the question has not in fact been squarely passed upon here. We hold, therefore, that we have jurisdiction of the appeal. Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523.

We have recently had occasion, in Olson v. Chicago Transit Authority, 1 Ill.2d 83, to describe the scope of our constitutional provision guaranteeing trial by jury. In upholding the power of the Appellate Court to pass on the weight of the evidence upon reversing a judgment entered upon a verdict and remanding for a new trial, we pointed out that the constitutional provision relates to the substance of the right rather than the incidents of its exercise, and that the substance relates to the allocation of power between judge and jury. (1 Ill.2d 83, 85-86.) This principle has even more forceful application to the present case. It is true, as plaintiff points out, that at common law a defendant could not avail himself of a motion for judgment notwithstanding the verdict. So far as he wished to attack the sufficiency of plaintiff's pleadings, he made a motion in arrest of judgment. (See Millar, Civil Procedure of the Trial Court in Historical Perspective, pp. 323-325.) Of course a mere change in nomenclature does not violate the constitutional guarantee. Plaintiff's real objection is to the fact that the court, under whatever label, is empowered to set aside the verdict of a jury without ordering a new trial. In this State it has long been recognized that a judge may remove a case from the jury by directing a verdict if the evidence for the party opposing such action, taken most favorably to him, wholly fails to support a material allegation of his claim or his defense. (See Poleman v. Johnson, 84 Ill. 269; Frazer v. Howe, 106 Ill. 563; cf. Commercial Ins. Co. v. Scammon, 123 Ill. 601, 605-606.) A similar power existed at common law in England. (See Millar, op. cit. supra, pp. 297-300.) At common law, however, this action of the trial court had to be taken before the verdict was returned, and a verdict once returned could not be set aside without granting a new trial. See Slocum v. New York Life Ins. Co. 228 U.S. 364; but cf. Baltimore and Carolina Line, Inc. v. Redman, 295 U.S. 654, 659-660.

Section 68 of the Civil Practice Act and Rule 22 of this court remedy this gap in common-law procedure by permitting the trial court to reserve judgment on a motion for directed verdict, and by allowing a motion for judgment notwithstanding the verdict to be made after a verdict has been returned. Rule 22 states, and we have repeatedly pointed out, however, that the duty of the trial court in passing upon that motion is precisely the same as that which governs the common-law motion for directed verdict. (See, e.g., City of Monticello v. LaCrone, 414 Ill. 550, 555; Weinstein v. Metropolitan Life Ins. Co. 389 Ill. 571, 576; Merlo v. Public Service Co. 381 Ill. 300, 311-312.) "The question presented by a defendant's motion for a directed verdict in an action at law is whether there is any evidence fairly tending to prove the cause of action alleged or fact affirmed, and the court does not, on such motion, weigh the evidence or consider its preponderance. [Citations.] No contradictory evidence, or other evidence of any kind or character, will justify a directed verdict or a judgment for defendant notwithstanding the verdict, except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense." (Hughes v. Bandy, 404 Ill. 74, 79.) Plaintiff's contention thus reduces to the proposition that the trial court may withdraw the case from the jury before verdict, but not afterward. This is obviously not a change in the substance of the right to trial by jury.

Plaintiff cites the case of Slocum v. New York Life Ins. Co. 228 U.S. 364, where it was held that an appellate court could not reverse a judgment on the verdict without remanding for new trial even though the state of the evidence was such as to have made the denial of a motion for directed verdict erroneous. The decision there is, of course, not binding upon us, since it is based upon the seventh amendment to the United States constitution, and it has, moreover, been all but overruled on this point by subsequent decisions of the Supreme Court. See Baltimore and Carolina Line, Inc. v. Redman, 295 U.S. 654; cf. Berry v. United States, 312 U.S. 450, 452-453; Rule 50(b), Federal Rules of Civil Procedure; see also Aetna Ins. Co. v. Kennedy, 301 U.S. 389; Lyon v. Mutual Benefit Health & Accident Ass'n, 305 U.S. 484; Montgomery Ward & Co. v. Duncan, 311 U.S. 243; Johnson v. New York, New Haven & Hartford Railroad Co. 344 U.S. 48.

The principle announced in the Slocum case, furthermore, has not been followed in this State, for we have stated that an Appellate Court could constitutionally reverse without remanding where the trial court would have been justified in directing a verdict but refused to do so. (Mirich v. Forschner Contracting Co. 312 Ill. 343; Commercial Ins. Co. v. Scammon, 123 Ill. 601.) If such a power may validly be given to a court of review, it would be anomalous to deny it to a court of first instance. We hold, therefore, that the power to enter judgment notwithstanding the verdict on the ground that the plaintiff's evidence wholly fails as a matter of law to establish his claim is not a violation of article II, section 5.

We thus come to a consideration of whether the trial court was correct in entering its judgment for defendants. The facts are largely uncontroverted.

On April 6, 1949, plaintiff was employed as an automobile mechanic by a motor transport company. On the night of April 5, a burglary had been committed on the premises of another company, where plaintiff had been employed until a month before. The defendants, both officers in the Chicago police department, in the course of investigating this burglary, learned of plaintiff's prior employment. On the evening of April 6, around 9:30 or 10:00 o'clock, they visited his current place of employment, placed him under arrest, and removed him to a local police station, where an arrest slip was made out showing that he was being held "for investigation." He was detained in police custody without charges being preferred until the morning of April 8, when he was booked on a charge of disorderly conduct, and was released on $10 bail. He was brought to trial on that charge on April 11, in the municipal court, and was discharged as not guilty. Neither of the defendants appeared to ...


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