Appeal from the Superior Court of Cook county; the Hon. M.D.
HARTIGAN, Judge, presiding. Reversed and remanded.
PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 19, 1956.
Emmis Kooyumjian and Louise Kolosick filed a suit in the Superior Court of Cook county to recover damages for personal injuries to Kolosick and property damage on the part of Kooyumjian allegedly occasioned by the negligence of the defendant in operating his automobile. The case was tried before a jury. The verdict returned found the defendant guilty as to plaintiff Kolosick and awarded her $300 as damages and found the defendant not guilty as regards the plaintiff Kooyumjian. Judgment was entered on the verdict and from such judgment both plaintiffs take this appeal.
The plaintiffs contend here that the damages awarded plaintiff Kolosick are grossly inadequate; that plaintiff Kooyumjian is entitled to damages; that the trial court erred in its rulings on the admissibility of evidence and in instructing the jury; that by the rulings and remarks of the trial court the plaintiffs were deprived of a fair trial; and that the verdict is against the manifest weight of the evidence.
The vehicle in which Kolosick was a passenger was owned and operated by plaintiff Kooyumjian, who claims only property damage to his automobile. Plaintiff Kolosick claims damages for personal injuries received as a result of the collision. From the evidence introduced at the trial of the case it appears that about 2:15 p.m. on December 26, 1950 the automobile in which plaintiffs were riding was struck in the rear by the automobile owned and driven by the defendant at about 917 West Lawrence avenue in the City of Chicago. On the day in question the streets were covered with packed snow and were slippery. The plaintiff Kooyumjian, while driving east on Lawrence avenue, stopped because of an automobile double-parked ahead of him, and his automobile was struck from behind by defendant's car.
Plaintiff Kolosick testified that she was thrown under the dashboard of the automobile in which she was riding and suffered great pain. She went with the defendant and coplaintiff to the Ravenswood Hospital where she was treated by a Dr. Ireland, who continued to treat her periodically. She testified that she had worked at two jobs from 1941 to the date of the collision; that she worked daily at Triangle Tool and Manufacturing Co. as a punch press operator from 8:00 a.m. until 4:30 p.m. and also worked daily at Croname, Inc. at the same occupation from 4:45 p.m. until 1:30 a.m.; that on account of her injuries she was compelled to absent herself from her work, resulting in a loss of earnings amounting to $2203.20; that she had paid $34.50 to the hospital and $61.80 for medical expense, and she was indebted to Dr. Ireland in the amount of $340 for his services. She also testified that she had suffered severe pain at the time of the accident and subsequently, and that the pain still persists; that she had worn day and night for eight months, under the prescription of her physician, a garment with steel stays and braces, and after the garment was removed the doctor prescribed a solid board for use in her bed under the mattress; that before the accident she attended movies but now is unable to sit through a movie; that before the accident she did her own housework and that since the accident she is incapacitated from performing her household duties to the same degree; that at the present time she works for the Triangle Tool and Manufacturing Co. but not for Croname, Inc.
Dr. Ireland, the attending physician, testified concerning his examination, treatment and diagnosis of plaintiff Kolosick immediately after the accident. He stated that the reasonable costs and charges for the medical services rendered were $340; that the accident in question could have caused her condition subsequent to its occurrence and that such condition might be permanent.
The defendant testified that at the time of the collision he was twenty years old; that he was traveling east on Lawrence avenue at a slow rate of speed; that he saw the plaintiff's vehicle ahead of him come to a sudden stop in the middle of the block; that he immediately applied his brakes and skidded into the rear of plaintiff's car; that he saw no hand signal or stop light flash before the collision. The plaintiff Kooyumjian testified that his stop lights were operating.
Before us the defendant urges a proposition which, if decided in his favor, would be decisive of the appeal. He contends that under the provisions of section 68 of the Civil Practice Act (Ill. Rev. Stat. ch. 110, par. 192), a party moving for a new trial must file his points in writing, particularly specifying the grounds for such motion; that the plaintiffs by their failure to do this waived all rights they might have had for a review in this court; and that in any case the plaintiffs would have no right under the motion as made to have anything reviewed except the decisions of the trial court made in the progress of the trial and that questions concerning the manifest weight of the evidence, the allegedly prejudicial remarks and rulings of the trial court and the inadequacy of the damages are not before us. We will consider this contention first.
The jury returned its verdict on March 18, 1955. On April 12, 1955 the trial court entered an order nunc pro tunc as of March 18, 1955 "for the purpose of preserving for the record of this cause the events of that day." The order recited that the jury having returned its verdict in this cause finding the defendant not guilty as to plaintiff Kooyumjian and finding the defendant guilty as to plaintiff Kolosick and assessing said plaintiff's damages at $300, the plaintiffs duly and regularly moved for a new trial, arrest of judgment, and for judgment notwithstanding the verdict, which motions the court overruled and judgment was thereupon entered on the verdict.
[1-3] This question has heretofore been passed on by the courts of this State. In Yarber v. Chicago & A.R. Co., 235 Ill. 589, the court, after a full discussion, lays down the rule concerning the review of matters arising in a cause both when no motion for new trial is made and when a motion for new trial is submitted without any points stated in writing. The Practice Act then controlling was substantially the same as the Civil Practice Act of 1933 in force at the time when the instant case was tried, and provided that either party moving for a new trial shall file the points in writing, particularly specifying the grounds of such motion. The court held that this section was directory and not mandatory, and that while the party moving for a new trial may be required by the court or the opposite party to file the points in writing specifying the grounds of his motion, however, "If this is not required and the motion is submitted without any statement in writing of the grounds therefor and without objection, the requirement of such statement is waived. If certain points in writing particularly specifying the grounds of a motion for a new trial have been filed, the party will be deemed to have waived all causes for a new trial not set forth in his written grounds and in the appellate court will be confined to the reasons specified. On the other hand, if the motion has been submitted without specifying, in writing, the grounds therefor, the party may avail himself of any cause for a new trial which may appear in the record, whether it be the admission or rejection of evidence, the giving or refusal of instructions, the lack of sufficient evidence or any error occurring on the trial. . . . [Citing cases]." The defendant has totally misapprehended this decision and cites as controlling our area of review a statement in the decision referring to the power of review by an Appellate Court where no motion for a new trial has been filed. People v. Cohen, 352 Ill. 380, reaches the same conclusion as was reached in the Yarber case, and holds that the rule laid down is applicable to both civil and criminal cases. The latest statement on this subject is People v. Flynn, 8 Ill.2d 116, where the court says:
"Prior to 1933 the rule, in both civil and criminal cases, required the moving party to file his points in writing, particularly specifying the grounds of his motion. However, if a verbal motion was made without objection, the party could avail himself of any cause for a new trial which might appear in the record. If the party filed a written motion specifying the grounds, then he would, of course, be confined on review to the reasons specified in the trial court, and would be held to have waived all causes for a new trial not set forth in writing. People v. Cohen, 352 Ill. 380; Anderson v. Karstens, 297 Ill. 76; Bromley v. People, 150 Ill. 297; Ottawa, Oswego & Fox River Valley Railroad Co. v. McMath, 91 Ill. 104.
"The 1933 amendment substantially restated the requirement of writing which had theretofore appeared in section 77 of the Practice Act of 1907, governing procedure in both criminal and civil cases. Nothing in its language purports to change the character or incidents of the requirement . . . If the legislature desired to change the established consequences of a failure to comply, and intended that an oral motion without objection should constitute a waiver, on review, of all grounds for a new trial, it would have said so by specific provision. It would not have left such a change to be inferred from a mere absence of provisions to the contrary."
The court holds that while it is better practice for attorneys to specify in writing the grounds relied on for a new trial, nevertheless the requirement may be waived. It is apparent that where no rule is made upon the moving party to file his points in writing the statutory requirement is waived and the party can avail himself of any cause for ...