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Bowman v. Illinois Central R.r. Co.

OPINION FILED MARCH 20, 1957.

ELIZABETH B. BOWMAN, APPELLANT,

v.

ILLINOIS CENTRAL RAILROAD COMPANY, APPELLEE.



APPEAL from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. HARRY J. FLANDERS, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Per CURIAM:

Rehearing denied May 20, 1957.

This court has allowed plaintiff's petition for leave to appeal from a judgment of the Appellate Court reversing and remanding for a new trial a judgment entered by the circuit court of Cook County on a jury verdict awarding plaintiff damages under the Federal Employers' Liability Act in the amount of $200,000 for injuries sustained to plaintiff's ward, Charles D. Bowman, while in the course of his employment by defendant Illinois Central Railroad Company. The jury answered adversely to defendant this specific interrogatory: "Do you find by a preponderance of the evidence that at the time plaintiff's ward executed the release he was incapable of understanding what he was doing and unable to comprehend the terms and effect of the release?" The cause also presents plaintiff's motion for the issuance of this court's ancillary writ of mandamus, certiorari, or other writ to require the Appellate Court to strike the remanding portion of its order under section 75(2)(c) of the Civil Practice Act.

There are several distinct legal issues presented for our determination by this appeal: Whether under the terms of section 75(2)(c) of the Civil Practice Act (Ill. Rev. Stat. 1955, chap. 110, par. 75(2)(c),) the striking of a remanding order is mandatory upon the Appellate Court where the party whose judgment was reversed files the specified motion and affidavits, or whether the order may be stricken only where the judgment is reversed and remanded for insufficient evidence; whether the Appellate Court can weigh the evidence in reviewing Federal Employers' Liability Act cases; whether the jury verdict is supported by the evidence; and whether the Appellate Court erred in its application of the law respecting the admission of certain evidence.

Before we can properly consider the questions of law relating to the merits of the cause, it is necessary to ascertain first whether the jurisdiction of this court can properly be invoked. Our appellate jurisdiction is prescribed by the Civil Practice Act, and section 75 authorizes petitions for leave to appeal from Appellate Court determinations. We will review such judgments, however, only where there has been a final appealable order. Defendant argues that since the Appellate Court has refused to strike the portion of its order remanding the cause for a new trial, no final appealable order is presented, and that this court is without power to order the Appellate Court to finalize its judgment.

Plaintiff maintains that under section 75(2) (c), when the party whose judgment was reversed and remanded for a new trial by the Appellate Court files the requisite motions and affidavits waiving a new trial and stating that he will be unable on a future trial to adduce other or additional evidence, it is mandatory for the Appellate Court to strike the remanding portion of its order; and that if the Appellate Court refuses to do so, the Supreme Court may, in aid of its appellate jurisdiction, issue the auxiliary writ of mandamus or certiorari to determine the questions of law presented in the cause.

This controverted section of the Civil Practice Act provides: "In any case heard and determined in the trial court upon actual trial in which the Appellate Court upon appeal from the final judgment or decree entered in the cause in the trial court reverses said judgment or decree and remands the cause for a new trial or hearing, and in which the party in whose favor the trial court's judgment or decree was rendered shall present to and file with the Appellate Court an affidavit stating that he will be unable on a future trial or hearing to adduce other or additional evidence, facts or circumstances than were adduced in the trial court and expressly waiving the right to a new trial or hearing and consenting and requesting that the portion of the judgment of the Appellate Court remanding the cause for new trial or hearing be deleted and stricken from the judgment of the Appellate Court, then that court upon motion shall amend its judgment by striking out the portion thereof remanding the cause for new trial or hearing. Thereupon it shall be competent for the Supreme Court to grant leave to appeal from said final judgment of reversal for its review and determination with the same power and authority in the case, and with like effect, as in other cases in which leave to appeal from the final judgments of the Appellate Courts is authorized in this section."

In support of her contention, plaintiff cites the original historical note appearing in the annotated volume of the statutes (Smith-Hurd Ill. Anno. Stat., chap. 110, par. 75, p. 68,) wherein the provision is interpreted as imposing a mandatory requirement upon the Appellate Court to strike the remanding portion of its order where a party files a motion supported by proper affidavits. Plaintiff also cites similar interpretations by other authorities on the Civil Practice Act. 5 Nichols, Ill. Civil Practice, 643; 23 Chicago Bar Record 237, 251.

In an article on Illinois practice, prepared by one of the draftsmen of the act, Albert E. Jenner, Jr., shortly after enactment of section 75 (2) (c), it is stated: "Under the practice obtaining prior to the enactment of subsection 75(2)(c) of the Civil Practice Act, a judgment of the Appellate Court reversing and remanding a case for a new trial could be made final for purposes of review by the Supreme Court on petition for leave to appeal if the Appellate Court, in its discretion, on motion and affidavit of the party in whose favor judgment had been entered in the trial court, struck the remandment portion of its judgment. The applicant was required to state in the affidavit in support of his motion that he would be unable, on a further trial or hearing to adduce other additional evidence, facts or circumstances than were adduced on the trial resulting in the judgment reversed by the Appellate Court, expressly waiving his right to a new trial and consenting and requesting that the portion of the judgment of the Appellate Court remanding the cause for a new trial or hearing be deleted and stricken from the judgment of the Appellate Court. The amendment of the Appellate Court judgment by striking the remanding portion of the judgment was entirely discretionary with the Appellate Court. Section 75 of the Civil Practice Act was amended by adding a new subsection (2)(c), codifying the foregoing practice, except that the striking of the remandment portion of the judgment of the Appellate Court is made mandatory." (Ital. added.) 23 Chicago Bar Record 237, 251.

Defendant, however, in support of its contention that the striking of the remanding order is discretionary with the Appellate Court and should be exercised only where the cause is reversed on the ground of insufficient evidence, cites Lees v. Chicago and North Western Railway Co., 409 Ill. 536. In the Lees case there were several charges of negligence, and the record did not disclose upon which ground plaintiff recovered in the trial court. On review, the Appellate Court held that a certain contract should have been admitted in evidence, and reversed and remanded the cause for a new trial. Upon plaintiff's motion, the remanding order was stricken. On appeal, the Supreme Court held that inasmuch as this contract, even if admitted in the record, was not a defense to all of the charges in the complaint, therefore it was not possible to enter a final judgment in favor of the defendant in the cause, and consequently the striking of the remanding order was not proper. The court stated that the party seeking to strike the remanding order must present in his affidavit a question on which the Appellate Court can render a final judgment.

In the instant case, however, plaintiff has alleged a single basis for recovery, and defendant has interposed the defense of a release, which, if valid, would bar plaintiff's entire claim. The Appellate Court, as grounds for reversal, has found the evidence supporting the general and special verdicts, both favorable to the plaintiff, contrary to the manifest weight thereof, and that there were errors in the admission and rejection of evidence which tended to enhance the validity of the release; consequently, a final judgment for defendant could have been entered. Unlike the Lees case where the grounds for reversal by the Appellate Court involved a defense to only a part of plaintiff's claim, in the instant case the ground for reversal by the Appellate Court related to a defense which barred plaintiff's entire claim. Therefore, since a final order for defendant could be entered in the instant case, we cannot sustain defendant's contention that the ratio decidendi of the Lees case precludes the striking of the remanding order herein.

We are cognizant, however, of the further dictum by that court, relied upon by defendant, which would limit the application of section 75(2) (c) to cases where the cause is reversed and remanded for insufficient evidence. Plaintiff argues that this dictum, in no way necessary to the decision, is contrary to the terms and objectives of the statute, and would render section 75 (2) (c) a nullity.

A careful reading of section 75 (2) (c) reveals that by its terms it does not limit the right to strike the remanding order to cases where the Appellate Court reverses for insufficient evidence, or for any other particular grounds. The statute is all encompassing, and grants the right to strike the remanding portion of the order in all cases where the Appellate Court reverses and remands a cause for a new trial, provided the party in whose favor judgment was originally entered in the trial court files the requisite affidavit relinquishing the right to a new trial, and stating that he will be unable on a future trial to adduce other or additional evidence.

Not only does the section apply in plain, unequivocal terms to judgments reversed for whatever reason, but it gives the party whose judgment is reversed, and only that party, the right to decide whether to endeavor to eliminate the errors in a new trial, or to finalize the judgment by the procedure provided in section 75(2)(c), and take his chances of securing leave to appeal to this court.

Defendant argues with persistence that it is not only entitled to a reversal of plaintiff's judgment because of alleged errors, but to a new trial that is free from error, and that plaintiff cannot deprive it of that right by invoking section 75(2)(c) where there were errors of law in the trial.

This argument, while appealing as a statement of general principle, has no application to the issues in this case, since defendant, by plaintiff's waiver of a new trial, is deprived of absolutely no rights to which it is entitled. If plaintiff is willing to forego a new trial, in which more evidence may be offered and those errors of law which deprive plaintiff of her judgment may be corrected, then defendant enjoys the potential advantage that the Supreme Court may not grant plaintiff's leave to appeal, in which case the Appellate Court's judgment in defendant's favor is final and disposes of the entire case. If leave to appeal is granted, and the Supreme Court holds that the Appellate Court's interpretation of the law is correct, the judgment in defendant's favor will be affirmed. In that event, defendant, who is spared the burden of a new trial, certainly has no cause to complain.

It is only where the Supreme Court conceivably holds that the Appellate Court erred in its interpretation of the law respecting the errors of the trial court that defendant could in any way be adversely affected. Under those circumstances, defendant should not have been entitled to the reversal and remandment in its favor by the Appellate Court in the first instance. Furthermore, in this event defendant would eventually have been adversely affected to the same extent, even if the remanding order were not stricken. For, after the so-called errorless trial, based upon the Appellate Court's incorrect interpretation of the law, this court would be still obliged to reverse the judgment.

The only possible advantage of which defendant may be deprived by plaintiff's waiver of a new trial under section 75(2)(c) is the tactical benefits of delay by forcing plaintiff to submit to a new trial, which is scarcely a right of which this court may take cognizance. Defendant cannot in good conscience accept judgment in its favor because of certain errors of the trial court, and at the same time complain because plaintiff is willing to accept the loss of her judgment in order to take the risk of securing review of those questions of law by the Supreme Court. It is therefore apparent that construing section 75(2)(c) according to its plain terms will in no way deprive defendant of any legal rights.

There is another and more cogent reason for rejecting defendant's contention that section 75(2) (c) must be limited only to cases reversed and remanded for insufficient evidence. It is clear from the statute that judgments finalized under section 75 (2) (c) can be reviewed by this court only upon the same basis as other petitions for leave to appeal. Under section 92(3) (b) of the Civil Practice Act, the Supreme Court can examine cases brought to it by appeal from the Appellate Court as to questions of law only. Thus, even if a judgment of the Appellate Court is finalized under section 75(2) (c), this court could not review it if it merely raises the sufficiency of the evidence. Olson v. Chicago Transit Authority, 1 Ill.2d 83.

Judgments reversed and remanded for insufficient evidence ordinarily raise only factual questions relating to the weight of evidence. Nevertheless, defendant would have this court restrict the use of section 75(2) (c) to just such cases, when it is clear that under such circumstances there would be no use for finalizing the judgment since it could never be reviewed by the Supreme Court because of the prohibition in section 92 (3) (b).

If the evidence were so insufficient that a question of law would be presented, of which the Supreme Court could take cognizance, the Appellate Court should properly enter a directed verdict in defendant's favor rather than a remanding order, in which case there would be no need to invoke the procedure provided in section 75(2) (c).

It is our opinion, therefore, that the restricted application of section 75(2) (c), suggested in the Lees dictum, and asserted by defendant, would render the statute a nullity and utterly defeat its remedial objectives.

It is significant, moreover, that no such limitation has been imposed by the other Appellate Courts under the practice obtaining both prior and subsequent to the enactment of section 75 (2) (c).

In Hartley v. Red Ball Transit Co. 344 Ill. 534, the Appellate Court, as in the instant case, reversed the judgment in favor of plaintiff because of errors of law in the submission of evidence. (259 Ill. App. 229.) With reference thereto the Appellate Court stated at p. 232: "In violation of this rule the contract went to the jury for construction, together with a mass of more or less irrelevant testimony touching the methods of the parties in conducting their business. * * * Complaint is made as to the rulings in evidence and remarks of the court upon the trial. Such errors, if any, will not likely occur upon the next trial." Despite the reversal for errors in the admission of evidence, the Appellate Court, upon plaintiff's motion, supported by an affidavit that plaintiff could not produce further evidence on a retrial, struck the remanding portion of the order, and the cause was heard by the Supreme Court on plaintiff's petition for leave to appeal.

In Blanchard v. Lewis, 414 Ill. 515, determined after the enactment of section 75(2) (c), the jury returned a verdict for plaintiff in a suit upon a contract, and the Appellate Court reversed and remanded the cause for a new trial for errors of law. (345 Ill. App. 246.) The Appellate Court stated: "We are, therefore, of the opinion that the admission of testimony having to do with events that occurred prior to the execution of the contract, the various exhibits having to do with the cancellation of powers of attorney, the testimony as to the bonds held by plaintiffs and the testimony as to the improper placement of bids at the tax foreclosure sale, was a clear violation of the Parole Evidence Rule (citations). The trial court erred in overruling plaintiff's objections to this line of testimony and in denying their motions to strike." Notwithstanding such errors of law in the admission of evidence, analogous to those alleged in the instant case, the Appellate Court allowed plaintiff's motion to strike the remanding order under section 75(2)(c) and to have the judgment entered against him. Plaintiff thereafter filed a petition for leave to appeal, which was allowed by the Supreme Court to review such errors of law.

A similar procedure was followed in Shaw v. Courtney, 385 Ill. 559, and in Corcoran v. City of Chicago, 373 Ill. 567. It would serve no useful purpose to document this opinion further with all the cases where this procedure was followed. The only reference in the case law limiting plaintiff's right to have the remanding order stricken, as defendant suggests, appears in the dictum in the Lees case, which, as we have found, was in no way necessary to a proper disposition of that case.

Patterson v. Warfield, 233 Ill. 147, cited by defendant, has no application to this issue. The court therein construed a statute different from section 75(2) (c) in that it imposed upon the Supreme Court the duty to weigh the evidence, whereas section 75(2) (c) provides that judgments finalized thereunder should be reviewed on the same basis as other cases authorized for review, and in no way infringes upon the appellate jurisdiction of the Supreme Court.

On the basis of this analysis we believe that according to the literal meaning of the words of section 75(2)(c) the striking of the remanding order is mandatory upon the Appellate Court in all cases where the party whose judgment in the trial court was reversed and remanded files the requisite motion and affidavit. This interpretation renders the section consistent with accepted practice, and effectuates the undoubted legislative intent to streamline litigation and prevent costly and burdensome retrials of cases which may later be found to be predicated upon incorrect law. Consequently, the statute should be construed to achieve this laudable purpose, rather than reflect a hardening of procedural arteries.

Moreover, contrary to defendant's assertion, the imposition of this duty upon the Appellate Court does not interfere with the judicial function any more than any other requirement prescribing the appellate jurisdiction of a court which may properly be designated by the legislature. Scott v. Freeport Motor Casualty Co., 379 Ill. 155.

Defendant contends further that we are without power or authority to issue the extraordinary writs herein to review the Appellate Court judgment. Upon plaintiff's filing a petition for leave to appeal after the cause has been decided by the Appellate Court, it was within our province to determine whether our jurisdiction was properly invoked. Although we have held, as defendant states, that a judgment reversing and remanding a cause for a new trial does not present a final appealable order (Kavanaugh v. Washburn, 387 Ill. 204; Eckhardt v. Hickman, 2 Ill.2d 98, 103), nevertheless, where the Appellate Court, in disregard of the statute, has arbitrarily and contumaciously refused to finalize such order, this court has power in aid of its appellate jurisdiction to issue the appropriate extraordinary writ to bring the record before this court, and determine whether the inferior tribunal has exceeded its jurisdiction or proceeded according to law. People ex rel. Stead v. Superior Court, 234 Ill. 186; People ex rel. v. Circuit Court of Cook County, 169 Ill. 201; People ex rel. Waber v. Wells, 255 Ill. 450, 455; People ex rel. Modern Woodmen v. Circuit Court of Washington County, 347 Ill. 34.

It has been held that such power is not only inherent, but has been expressly conferred by the statutory provision authorizing this court to issue the extraordinary writs of mandamus, habeas corpus, certiorari, error and supersedas, and all other writs not prohibited by law which may be necessary to enforce the due administration of justice in all matters within its jurisdiction. Ill. Rev. Stat. 1955, chap. 37, par. 13; People ex rel. v. Circuit Court of Cook County, 169 Ill. 201.

In the Cook County Circuit Court case it was stated: "The grant of the general power to exercise appellate jurisdiction would seem to imply the particular power to issue the writ of prohibition if it is necessary to the exercise of such jurisdiction." The writ was denied in that case only because the original order of the circuit court on the merits had not yet been considered by the Appellate Court, and therefore was not presented for review in the Supreme Court. In the instant case, however, the Appellate Court had entered a judgment on the merits, and plaintiff had filed her petition for leave to appeal from the judgment; consequently, there was a proper basis for the issuance of one of the extraordinary writs in aid of this court's appellate jurisdiction.

In People ex rel. Stead v. Superior Court, 234 Ill. 186, it was held that this court may direct the issuance of a writ of certiorari to protect its appellate jurisdiction where a lower tribunal entertained proceedings which were in derogation of a previous Supreme Court determination of the rights of the parties. The court protected its appellate jurisdiction by the issuance of the extraordinary writ of certiorari, notwithstanding the fact that the case was no longer pending before it. By the same token, it is equally appropriate that the extraordinary writ of certiorari be issued where the exercise of our appellate ...


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