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April 4, 1960


The opinion of the court was delivered by: Miner, District Judge.

  This is an action to recover for personal injuries sustained when plaintiff's automobile was struck by the vehicle owned and operated by defendants. The complaint demands judgment in the amount of $150,000. Defendants, in their respective answers, denied that plaintiff was free from contributory negligence, that they were guilty of any negligence whatsoever, and that plaintiff has sustained damages by reason of the accident.

On the Court's own motion, an order was entered pursuant to Rule 21 of the Civil Rules of the Northern District of Illinois that there be separate trials on the issues of liability and damages. Rule 21 reads:

    "Pursuant to and in furtherance of Rule 42(b),
  Federal Rules of Civil Procedure, to curtail
  undue delay in the administration of justice in
  personal injury and other civil litigation
  wherein the issue of liability may be adjudicated
  as a pre-requisite to the determination of any or
  all other issues, in jury and non-jury cases, a
  separate trial may be had upon such issue of
  liability, upon motion of any of the parties or
  at the Court's direction, in any claim,
  cross-claim, counter-claim or third-party claim.
    "In the event liability is sustained, the Court
  may recess for pre-trial or settlement conference
  or proceed with the trial on any or all of the
  remaining issues before the Court, before the
  same jury or before another jury as conditions
  may require and the Court shall deem met.
    "The Court, however, may proceed to trial upon
  all or any combination of issues, if, in its
  discretion, and in the furtherance of justice, it
  shall appear that a separate trial will work a
  hardship upon any of the parties or will result
  in protracted or costly litigation."

Prior to trial on the issue of liability, it appeared that defendants were willing to offer in compromise and settlement of the case the sum of $16,000. The trial resulted in a jury verdict finding the defendants guilty as charged in the complaint, and the case was recessed for further settlement negotiations in chambers. At that stage of the proceedings defendants raised their offer for settlement to the sum of $27,000. Plaintiff's counsel requested that the trial on damages be continued pending consideration of the defendants' offer and for possible further negotiations with a view to an amicable settlement of the amount-of-damages aspect of the case. Plaintiff also expressed a desire to submit herself for additional x-ray plates for use on the issue of damages. Thereupon defendants' counsel moved for leave to petition for the appointment of an impartial medical expert in accordance with Rule 20 of the Civil Rules of this Court.*fn1

This Court was thus presented with the alternatives (1) of requiring that trial on the damage issue be had before the same jury to which had been submitted the liability question, or (2) of discharging that jury by agreement of the parties and continuing the damage issue for trial before another jury to be thereafter impaneled in the event no settlement were effected.

The Court is of the opinion that the better and preferred practice is to submit the damage issue to the same jury which has decided the liability issue. It is the more expeditious, economical and less time-consuming procedure. Anticipating the trial of all issues to the same jury, the courts should permit that jury to be interrogated and qualified concerning damages as well as liability. Where, however, liability is established and a settlement is anticipated or reached, but not yet consummated, or additional medical proof or further preparation for trial on damages is desired, and the attorneys require additional time, a stipulation may be entered to discharge that jury and to try damages before a new jury.

It might be noted that where trial of the liability issue is separated from that on damages, a jury verdict sustaining liability is neither an interlocutory order from which a separate appeal will lie, nor a final decision. See Parr v. United States, 1956, 351 U.S. 513, 519, 76 S.Ct. 912, 100 L.Ed. 1377; Baltimore Contractors, Inc. v. Bodinger, 1955, 348 U.S. 176, 178-185, 75 S.Ct. 249, 99 L.Ed. 233; Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528; Roche v. Evaporated Milk Association, 1943, 319 U.S. 21, 30, 63 S.Ct. 938, 87 L.Ed. 1185; Metalock Repair Service, Inc. v. Harman, 6 Cir., 1954, 216 F.2d 611; Skirvin v. Mesta, 10 Cir., 1944, 141 F.2d 668, 671-672. It may be assigned as error and reviewed only on appeal from a final judgment in the case. Of course, judgment entered on a verdict of not guilty is final and appealable.

One should note, also, that in the event a new trial is ordered by an appellate court on appeal of the entire case, or by the trial court on motion, separate verdicts on separate issues may well reduce the number of issues to be retried. When the appellate courts become convinced that justice, indeed, will be served, the separability principle will naturally result in partial remand for a new trial solely on the issue in the trial of which error was actually committed.

In the case at bar, the practical necessities of dispensing justice, and the policy in favor of agreed disposition of pending causes wherever possible, require that the second alternative stated above be followed. The law generally, and our Rule 21 in particular, sanction trial of the damage issue to a second jury, in the discretion of the judge. But, without a stipulation, the court should invoke that procedure only in the event it does not work a hardship upon any of the litigants, does not result in unwarranted protracted litigation, and does not unduly increase the costs of suit.

Rule 21 was promulgated unanimously by the judges of this court with an express purpose to speed up the administration of justice without depriving litigants of any substantive or procedural benefit to which they may be entitled in law or in judicial discretion. The rule is intended to reduce trial time through simplification of issues, to increase settlements through more objective evaluation of cases by counsel and parties, to eliminate sympathy and prejudice in the trial of liability, and to prevent improper considerations which tend to compromise verdicts in the trial of damages.

Court congestion is a critical problem which strikes at the heart of the administration of justice.*fn2 The Attorney General, all the Supreme Courts and all the bar associations are desperately engaged in an effort to solve it.

Chief Justice Earl Warren of the United States ("Delay and Congestion in the Federal Courts", 42 J.Am.Jud. Soc. 6-7 (1958), summed up the challenge as follows:

    "The delay and the shocking congestion in the
  Federal Courts today have created a crucial
  problem for constitutional government in the
  United States * * * it is compromising the
  quantity and quality of justice available to the
  individual citizen and, in so doing, it leaves
  vulnerable throughout the world the reputation of
  the United States. * * *"

Delay causes hardship. Delay brings our courts into disrepute. Delay results in deterioration of evidence through loss of witnesses, forgetful memories and death of parties and makes it less likely that justice will be done when a case is reached for trial. Delay effects settlements favorable to defendants because it slowly wears a claimant down and compels him to accept less money as time goes on. This is a serious evil.

The volume of personal injury litigation in federal and state courts is appalling. All agree that it is a result of the rapid expansion of population, the astronomical increase in the number, speed and use of automobiles, the constant crescendo of transportation by train, bus and air. The judiciary's work load is becoming more and more burdensome due to an endless flow of new legislation, court rules, current legal periodicals and books which must be read to keep abreast with professional evaluation, not to speak of voluminous briefs to read and intricate opinions to write. While we, in the United States District Court for the Northern District of Illinois, may well take pride in our record in disposing of both old and new cases, we also realize the gravity of the situation. We are determined to avoid any further congestion in our trial calendars and to safeguard our judicial system.

We live in an era of rapid change resulting from scientific, technical and economic progress. In this era every profession has moved forward with rapid strides — engineers, scientists, architects, physicians and accountants. Unfortunately, however, our own legal profession has been suffering from stagnation and lies prostrated behind the parade. While the others are enhancing their prestige — sad but true, we are losing ...

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