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Olofsson v. Wood

OCTOBER 16, 1959.




Appeal from the Circuit Court of Kane county; the Hon. CASSIUS POUST, Judge, presiding. Affirmed.


This action arose out of a motor vehicle collision at the intersection of State Routes 47 and 64 in Kane County, Illinois. Shortly before the collision the plaintiff, Joel G. Olofsson, was driving a tractor-trailer unit east on Route 64, and the defendant, Margaret A. Wood, was driving her automobile north on Route 47. The tractor was owned by Olofsson and leased to the plaintiff, Sims Motor Transport Lines, Inc., owner of the trailer. A trial by jury resulted in a general verdict finding defendant guilty and assessing Olofsson's damages at $7250 and Sims' damages at $250. Judgments were entered in favor of plaintiffs for the amounts fixed by the verdict, and against defendant on her counterclaim. Defendant's post trial motion was denied, and this appeal followed.

Defendant's theory on appeal is that the trial court erred in forcing this case to trial ahead of a prior Cook County suit which was set for trial the next day, that the court erred in its rulings on the evidence and in instructing the jury, and that the verdict is grossly excessive.

Plaintiffs' complaint was filed in the Circuit Court of Kane County on April 12, 1956. In count I Olofsson alleged: that the collision occurred about 7:18 p.m., on November 30, 1955; that traffic at the intersection was regulated by traffic control devices, to-wit: stop signs for traffic on Route 47, and over the center of the intersection, an electrically operated signal flashing red for traffic on Route 47 and amber for traffic on Route 64; and that defendant negligently, or in the alternative willfully and wantonly, operated and drove her automobile, and as a direct and proximate result thereof, it collided with Olofsson's tractor, injuring him and damaging his vehicle. Several negligent or willful and wanton acts were specified, including defendant's driving through the stop sign and signal, her failure to yield the right-of-way, to keep a proper lookout, etc. Olofsson sued for $17,000 on account of his personal injuries and for loss of use and repair of his tractor. In count II Sims Motor Transport realleged the negligence and willful and wanton paragraphs of count I, and claimed $500 for loss of use and repair of the trailer.

On June 5, 1956, defendant's counsel, O'Brien, Burnell & Puckett, answered the complaint, denied the alleged negligent and willful and wanton acts, and demanded a trial by jury. On June 12 plaintiffs' attorney requested the clerk to place the cause on the trial calendar, and defendant's attorneys were notified of this request.

On January 30, 1957, defendant filed a motion for leave to add James A. Dooley as additional counsel, to withdraw her answer and to move to dismiss the cause, or in the alternative, to file a counterclaim. In her motion for leave it was alleged: that a prior action commenced on March 28, 1956, was pending in the Superior Court of Cook County between the same parties and for the same cause, within the meaning of section 48(c) of the Civil Practice Act [Ill. Rev Stats 1957, c 110 § 48(c)]; that plaintiffs did not appear and answer in that action until August 2, 1956; that when defendant was served with summons in the Kane County suit on April 18, 1956, she immediately forwarded the summons to her insurer in Springfield; that the insurer forwarded the summons to Attorneys, O'Brien, Burnell & Puckett, who filed defendant's answer in the instant suit; that said attorneys had no knowledge that defendant had another action pending in the Superior Court; and that defendant did not know the names of the attorneys selected by her insurer to represent her until she received a letter from them on October 27, 1956. Defendant's motion was supported by affidavits of attorneys associated with her respective counsel, and copies of her complaint in the Superior Court and plaintiffs' answer thereto were exhibited with her motion.

On March 4, 1957, the court granted Mr. Dooley leave to appear as additional counsel, but denied defendant's motion for leave to withdraw her answer and to file a motion to dismiss. On April 1, 1957, the court granted defendant's motion for leave to file a counterclaim, and defendant filed a counterclaim containing substantially the same allegations as those set forth in her complaint in the Superior Court. Plaintiffs answered defendant's counterclaim with the same admissions and denials contained in their answer in the Superior Court, and as an affirmative defense they admitted that counterplaintiff sustained the injuries alleged. Trial of the issues under the complaint and counterclaim and answers thereto was commenced on April 1, 1957, and on the 11th the jury returned the verdict for plaintiffs mentioned above.

Generally the court which first takes cognizance of an action over which it has jurisdiction and power to afford complete relief has the exclusive right to dispose of the controversy, without interference from other courts of coordinate power in which similar actions are subsequently instituted between the same parties, on the same subject, and to test the same rights. 14 I.L.P. 394, Courts 253. However, it has been held that the court whose process is first served has jurisdiction over the whole litigation, although the complaint was not first filed in that court, and that failure of a party to object will give a court, which subsequently acquires it, jurisdiction of the cause. 21 C.J.S. 754, Courts Sec. 492.

In Plume & Atwood Mfg. Co. v. Caldwell, 136 Ill. 163, 165, the Court said: "It is familiar that where two or more courts have concurrent jurisdiction of the same subject matter, the court first acquiring it by the service of process will retain the same to the exclusion of the other. . . . The rule giving exclusive jurisdiction to the court first acquiring it, is one that the parties may waive. . . ."

In De Brincat v. Mogan, 36 P.2d 245 (Cal.), De Brincat and Whitfield were involved in a collision in San Mateo County and both claimed damages. On February 9, 1934, Whitfield filed a complaint against De Brincat in the Superior Court in San Francisco. On February 13 De Brincat sued Whitfield in the Superior Court in San Mateo County and summons was served on the same day. The summons in the former case was served on February 17. On appeal from an order denying a petition in mandamus to stay proceedings in the court in San Francisco, the California District Court of Appeal said:

"Throughout the decisions we find the expression that `the court which first acquires jurisdiction . . . retains its jurisdiction and may dispose of the whole controversy.' 15 C.J. p. 1134, and cases cited in note 58; 7 R.C.L. p. 1067. In United States v. Lee (D.C.) 84 F. 626, Judge Wellborn has made an exhaustive review of the authorities involving actions in personam, and concludes that `the unbroken current of authorities is to the effect that priority of jurisdiction is determined by the date of the service of process.' See page 631 of 84 F., and cases cited.

"Our conclusion is therefore that in actions of this character the court in which process is first served has jurisdiction over the whole litigation and has full power to require the parties to come into that court for a complete ajudication of the controversy."

In Paskewie v. East St. Louis & Suburban R. Co., 197 Ill. App. 1, 6, a declaration was filed in the Circuit Court of Madison County on May 15, 1914, to recover for injuries sustained by a minor. Defendant filed a special plea alleging that on August 10 the minor sued defendant in the Circuit Court of St. Clair County on account of the same injuries and then recovered a judgment for $444. Plaintiff demurred to the special plea on the ground that the Circuit Court of St. Clair County was without jurisdiction because the suit in Madison County was commenced before the proceedings were commenced in St. Clair County and all proceedings in that county were had after the Madison County Circuit Court had acquired jurisdiction. The trial court overruled the demurrer, judgment was entered against plaintiff for costs, and he appealed. In affirming the judgment, the Court said:

"The parties to the suit in St. Clair County were identical with those to the suit pending in Madison County and the subject matter was the same. Had there been no suit pending in Madison County, the Circuit Court of St. Clair County would, under the circumstances named, have undoubtedly had jurisdiction of both the subject matter and the parties to the suit, and if the parties in order to expedite matters, or for other good cause, sought to take judgment in the Circuit Court of St. Clair County rather than to wait until the next term in Madison County, they had a right to do so and the defendant in this suit alone could take advantage of the former suit pending. A judgment so entered could not be attacked collaterally but if there was fraud in obtaining it, advantage thereof could only be taken by appeal or other action directly attacking the judgment. Where parties voluntarily submit themselves to the ...

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