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Millsap v. Central Wisconsin Motor Transp. Co.

JANUARY 8, 1963.






Appeal from the Superior Court of Cook County, and Appeal from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding. Judgment reversed and cause remanded or a new trial.


On November 30, 1954 an automobile driven by Jack H. Millsap, in which his nephew, Robert Millsap, aged fourteen, was riding as a passenger, collided with a tractor-trailer truck owned and operated by Central Wisconsin Motor Transport Company on Highway 41 near West Bend in Washington County, Wisconsin. Jack Millsap was killed, and his nephew severely injured. The Millsaps were residents of Illinois; defendant was incorporated in this state as well as Wisconsin. Accordingly, suit to recover damages for personal injuries to Robert Millsap was filed on February 24, 1955 in the Circuit Court of Cook County. Defendant filed an answer denying allegations of negligence. December 20, 1956 defendant had leave and filed a third-party complaint against Demma Millsap, administratrix, for contribution in the event joint liability should be found. Answer was filed, and the case was at issue pending its call for trial. On March 2, 1955 suit for wrongful death was filed in the Superior Court of Cook County, to which Central Wisconsin filed an answer together with a counterclaim for property damage to its equipment. This case was then also at issue and pending trial.

The Superior Court case was the first one to reach trial, and on May 2, 1961 was assigned by the assignment judge for both courts to a judge of the Circuit Court. After the parties reported to him for trial of the Superior Court case, Demma Millsap's attorneys for the first time sought to consolidate the two actions. At the same time a motion was filed to transfer the Superior Court case to the Circuit Court for consolidation, and an order to that effect was entered over objection by defendant. The court then proceeded to try both cases, as consolidated, simultaneously. At the outset of the trial the court dismissed the third-party complaint. The jury returned a verdict in the amount of $35,000 for Robert Millsap, and one of $17,570.40 for Demma Millsap, administratrix. Central Wisconsin appeals from the judgments on the verdicts.

[1-3] Central Wisconsin urges at the outset that the court deprived it of a fair and proper trial (1) by consolidating and trying the two cases together, and (2) in dismissing the third-party complaint for contribution. We find no merit in the first contention. The Circuit and Superior Courts of Cook County are courts of concurrent jurisdictions; they have a single assignment judge, a single motion judge, and their judges sit interchangeably. Both courts have uniform rules, none of which prohibits inter se transfers. Moreover, the act providing for the transfer of civil actions (Ill Rev Stats 1961, c 146, § 37) expressly empowers the court to which a case is assigned to order its transfer, while under the act providing for consolidation and severance of actions (Ill Rev Stats 1961, c 110, § 51) courts have inherent power and statutory sanction to consolidate "as an aid to convenience, whenever it can be done without prejudice to a substantial right." These statutes have particular and appropriate application to the Circuit and Superior Courts as indicated in A.C.F. Industries, Inc. v. Industrial Commission, 8 Ill.2d 552, 134 N.E.2d 764 (1956), where the problem arose and became an issue when orders entered in a single proceeding were taken by certiorari to two different courts. There the Supreme Court held (p 559) that "the power of the circuit and superior courts of Cook County to transfer a case to the appropriate court, `if considerations of justice or convenience require it,' is adequate to solve problems of this kind. . . ."

Specifically, defendant objects to the transfer because the clerks of the respective courts did not make a physical transfer of the documents and files. Although both section 37 of the Venue Act (Ill Rev Stats 1961, c 146) and section 10 of the Civil Practice Act (Ill Rev Stats 1961, c 110) impose the duty on the respective clerks to transfer and receive appropriate records, "the act of sending the papers to the transferee court is held to be a mere ministerial act of the clerk of the transferring court" (14 ILP Courts § 257, p 404, citing Herb v. Pitcairn, 392 Ill. 138, 147, 64 N.E.2d 519 (1945)) and failure to receive the papers does not defeat the jurisdiction of the transferee court.

Nor do we think it was an abuse of discretion to consolidate the cases for trial. Section 51 of the Practice Act, as we have already pointed out, provides for consolidation of actions, and the Supreme Court in Peck v. Peck, 16 Ill.2d 268, 275, 157 N.E.2d 249 (1959), held that consolidation is discretionary with the trial court and found "no abuse of discretion where the separate causes are of the same nature, arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially upon the same evidence, and when a joint trial will not give one party an undue advantage or prejudice the substantial rights of any party." Defendant was not deprived of any substantial right, and "consolidation," as the court said (p 276) in the Peck case, "makes for expedition, conservation of the time of the court, avoids duplication of effort, and saves unnecessary expense."

[6-9] Dismissal of defendant's third-party complaint for contribution presents a different problem. This accident occurred in the State of Wisconsin. It is well settled that the law of the state where the accident occurred governs the substantive rights. Whitney v. Madden, 400 Ill. 185, 188, 79 N.E.2d 593 (1948); McLean v. Chicago Great Western Ry. Co., 3 Ill. App.2d 235, 241-242, 121 N.E.2d 337 (1954). One of the substantive rights in Wisconsin is the right to contribution between tort-feasors. At the time of the accident this was considered a right based on principles of equity, but it was subsequently incorporated in the Wisconsin statute known as the Uniform Joint Obligations Act (Wis Stats 1956, §§ 113.01-113.05). The Supreme Court of Wisconsin, in Heimbach v. Hagen, 1 Wis.2d 294, 83 N.W.2d 710, 712 (1957), said that "contribution between joint tort-feasors is in origin an equitable principle, and arises when one joint tort-feasor pays more than his equitable share of the damages." The foregoing rules have been applied to automobile cases involving passenger injuries. In the case at bar Robert Millsap sued Central Wisconsin for his injuries and damages resulting from the accident. If both his driver, Jack H. Millsap, and the Central Wisconsin driver should be found guilty of negligence which resulted in injuries and damages, then Central Wisconsin would be entitled to a judgment for contribution as against the estate of Jack H. Millsap. This right was asserted by Central Wisconsin in its third-party complaint which had previously been allowed by Judge Fisher, the motion judge, and was part of the record when the two cases were consolidated. However, because of the subsequent order dismissing the third-party complaint, Central Wisconsin was deprived of its right to present the issue of contribution.

In Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), the Supreme Court of Wisconsin took occasion to re-examine the doctrine of contribution between joint tort-feasors. It held (p 107) that contribution should be proportionate to the percentage of causal negligence, and in re-examining the doctrine of gross negligence (which is characterized in Illinois as wilful and wanton misconduct) decided (pp 111-114) that it should be abolished and that such conduct would be treated as ordinary negligence for the purpose of comparison and contribution and for all other purposes. In the course of its discussion the court observed that the method of ascertaining a percentage degree of negligence to be attributed to the respective parties would not complicate litigation. The court continued (p 110):

"Most of the negligence cases are now tried with a special verdict and a comparison of contributory negligence, and no insuperable difficulties would be encountered. It is true under the present practice, if the plaintiff is not found causally negligent, no apportionment need be made, but at that point in the lawsuit the form of the verdict has included a comparison question and the jury has been instructed upon its use [referring in a footnote to Rashke v. Koberstein, 220 Wis. 75, 264 N.W. 643 (1936)]. In the minority of cases which would not have a comparison question, the new rule would require the jury to determine an additional inquiry on the relative degrees of negligence for contribution purposes. Any change requires some adjudgments [sic], but those which we foresee are not sufficient grounds to deny the benefits of the new rule."

This decision, filed in March of this year, is the latest expression of the Wisconsin court on the subject, and we commend its careful perusal.

Counsel say that the order of dismissal was based on the decision of Mutual Serv. Cas. Ins. Co. v. Prudence Mut. Cas. Co., 25 Ill. App.2d 429, 166 N.E.2d 316 (1960), but in that case we affirmed the court's allowance of defendant's motion to strike the statement of claim largely because the public policy of the State of Illinois does not permit direct action against liability insurers. An analogous situation was presented in Hughes v. Fetter, 341 U.S. 609 (1951), which involved statutory provisions excluding actions for wrongful death occurring in another state. Wisconsin had such a statute and refused to entertain an action for death occurring in an automobile accident in Illinois. The Supreme Court held that the full-faith-and-credit clause required the Wisconsin court to entertain the action. In First Nat'l Bank v. United Air Lines, 342 U.S. 396 (1952), the court invalidated an Illinois statute excluding foreign-death actions in cases where the action could be brought where the death occurred, referring to its Hughes decision. We hold that the order dismissing the third-party complaint should be vacated, and we direct that Central Wisconsin be afforded an opportunity to proceed with its claim for contribution as part of this litigation.

In his closing argument plaintiffs' attorney suggested to the jury a mathematical formula for fixing damages on the basis of allowing five dollars per day for pain and suffering. Defendant promptly objected, but the court overruled the objection and permitted counsel to develop this argument. There is a diversity of opinion in the various states on this subject. At the time of trial of the case at bar the Illinois Supreme Court had the question under advisement on a certificate of importance in Caley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206 (1962), and on March 23, 1962 filed its opinion, placing Illinois in the growing ranks of jurisdictions which prohibit this type of argument. New Jersey, Wisconsin, Missouri, Virginia, and West Virginia had, before Illinois, ruled that such a method of computing monetary damages was improper. In the Caley case the court squarely held (pp 392-394) that it was reversible error to permit plaintiff's counsel to use this type of argument to the jury, since the formula, as the court concluded, tends to discourage, rather than encourage, the jury's reasonable and practical consideration of the evidence of damages. For this sole error, the court reversed the judgment of the Appellate Court for the Second District and remanded the cause for a new trial. In the same filing the Supreme Court, in Jensen v. Elgin, J. & E. Ry., 24 Ill.2d 383, 386-387, 182 N.E.2d 211 (1962), again said that it was reversible error to permit counsel to use a time-unit mathematical formula in his argument to the jury, and stated that its decision in the Caley case was controlling in the Jensen case.

In an additional memorandum of law on this issue, filed since the case was argued orally, plaintiffs' counsel asserts that the Caley and Jensen decisions should be given only prospective effect. In support of this contention he says that the changes brought about by these decisions are procedural only, and he cites numerous cases from other jurisdictions which hold that procedural changes are to be prospectively applied. It is further suggested that to give the Caley and Jensen holdings retroactive effect will mean the granting of many new trials and the reversal of judgments obtained according to established practice. "Litigants and lawyers," argues counsel, "have the right to know what the law is and should not be penalized because of decisions affecting only procedural or adjective law." Since we are reversing the judgment here for reasons unrelated to the use of pain-per-diem argument, we need not decide whether the holdings of the Caley and Jensen cases relate to substance or procedure, or are to be retroactively applied in pending appeals in which pain-per-diem argument is the only reversible error. In the event of a retrial, plaintiffs' counsel will follow the rule laid down by the Supreme Court in the Caley and Jensen cases.

As the remaining principal ground for reversal it is urged that the court erred in refusing to submit to the jury special verdicts or interrogatories which were tendered by defendant on the question of percentage of negligence, and in improperly instructing the jury on the Wisconsin law of comparative negligence. Since this case will probably have to be retried, we find it necessary to express our views on the questions as an aid to the court on retrial of the case. Without detailing the evidence as to the accident, it may be stated that there was a sharp conflict as to the causal negligence of the parties. As we have already said, in 1962 the Supreme Court of Wisconsin in the Bielski case abolished gross negligence in that state, and only causal negligence is considered in comparative negligence cases. All negligence cases in Wisconsin are handled under the Wisconsin Comparative Negligence Act (Wis Stats § 331.045) which provides:

"Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering."

Under this statute the negligence of a party seeking recovery is compared with the negligence of the party against whom the recovery is sought. It is obvious that in order to apply this statutory enactment it becomes necessary to fix the respective percentages of negligence. This is done in Wisconsin by submitting special verdicts or interrogatories to the jury requiring a written finding upon the various issues of ...

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