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Wright v. Royse

OCTOBER 11, 1963.

JUANITA H. WRIGHT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF DAVID G. WRIGHT, DECEASED, AND JOHN P. MCMILLAN, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JOHN S. MCMILLAN, DECEASED, PLAINTIFFS-APPELLEES,

v.

JOHN JOSEPH ROYSE, DEFENDANT, AND THE ILLINOIS TERMINAL RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign County; the Hon. BIRCH E. MORGAN, Judge, presiding. Reversed and remanded.

REYNOLDS, J.

Rehearing denied November 6, 1963.

This is an appeal from two judgments rendered on verdicts by the Circuit Court of Champaign County, Illinois, prosecuted by one of the defendants, Illinois Terminal Railroad Company, a corporation, hereinafter referred to as the Railroad. The appeal involves two separate cases which were consolidated for trial and which are absolutely identical except for the names of the plaintiffs. Accordingly, we will deal with them as if they were a single case. In essence, this is a wrongful death action arising out of a collision which occurred on December 30, 1957, between the vehicle in which the decedent was riding as a guest passenger, and which was driven by one of the two defendants, and a signal light assembly owned and operated by the other defendant, the Illinois Terminal Railroad Company. The suit was filed in two counts, one by the administrator seeking damages for the wrongful death and the other by the parents of the decedent seeking medical and funeral expenses arising from the injuries and death which they had paid. Each count was directed against both defendants, jointly, alleging that the defendant driver, Royse, was guilty of wilful and wanton misconduct, that the defendant Railroad was guilty of negligence, and that the negligence of one defendant and the wilful and wanton misconduct of the other defendant caused the death of the decedent. Each count sought only a joint judgment against both defendants. The case was tried before a jury which returned verdicts in favor of the plaintiffs on each count, and in each case, jointly, against both defendants. Judgments were entered on the verdicts, post-trial motion was filed, argued and denied. As a result of the foregoing, the defendant Railroad Company took this appeal.

At the very outset, we must take up and dispose of appellees' motion to dismiss this appeal which we previously ordered taken with the case. The motion to dismiss the appeal relates, principally, to the entry of an order by the Trial Court, extending the time for filing the report of proceedings. It appears from the record that before the expiration of fifty (50) days from the filing of the notice of appeal, upon an affidavit made by the court reporter who had reported the trial in question, which was filed in the trial court, the trial judge entered an order extending the time for filing the report of proceedings for forty-five (45) days. Within the extended time, the appellant filed a short record in this court and a motion asking us to extend the time for filing of the report of proceedings. This motion, supported by affidavit of the same reporter who previously filed an affidavit in the Trial Court, and the appellees' objection to the extension of time (which included a contention that the appellees were unaware of the prior extension of time by the Trial Court) were all considered by us at which time we overruled the objections and extended the time for filing, within which time, the record was filed here. It appears clear from the record that the Trial Court entered its order extending the time solely upon the affidavit of the court reporter filed in the Trial Court, without any formal motion being made therefor in writing or otherwise, and without notice to any of the parties. Appellees contend that the Trial Court may properly extend the time in which to file the report of proceedings only upon a written motion, a hearing thereon pursuant to prior written notice, and the showing of good cause therefor.

The procedure in question is governed by Appellate Court Rule 1(1)(c) which is identical to Supreme Court Rule 36(1)(c). That rule provides, in part:

"On application made before the expiration of the original or extended period allowed by this rule for filing the report of proceedings, any judge of said court may on good cause shown extend the time for filing the same. . . ."

Appellees cite several cases which hold, consistently with the definition contained in Black's Law Dictionary that "motions" are "applications." Appellees then argue that if "motions" are "applications," therefore, all "applications" are "motions" and must be made in the form of a written motion, in accordance with prescribed motion procedures. This is a non sequitur. The word "application" is a generic term which includes, but is not limited to, "motions." In this connection, it seems quite significant to us that with reference to other proceedings provided for elsewhere in the Appellate Court Rules the word "motion" is used specifically, whereas, in the rule in question, the word "motion" nowhere appears, but instead the word "application" is used. For example, in the same rule (Appellate Court Rule 1) in Subsection (2)(e), it is stated that this court may extend the time for filing the record on appeal ". . . upon motion and affidavit showing good cause and due diligence." Appellate Court Rule 5 makes detailed provisions regarding the practice on motions and it is important to note that there is nowhere therein mentioned anything concerning "applications." We, therefore, hold that the word "application" as used in Appellate Court Rule 1(1)(c) is not synonymous with the word "motion," and accordingly, that the procedure with reference to "applications" is not the same as the procedure with reference to "motions." From our examination of the record, we find that the undisputed affidavit of the reporter filed in the Trial Court and the order of the Trial Court entered thereon disclosed "good cause shown." There is no indication of any prejudice whatsoever to the appellees. We therefore find that the procedure followed in this case in the Trial Court with reference to the extension of time was proper and in compliance with Appellate Court Rule 1(1)(c) and accordingly hold that the motion to dismiss the appeal is denied.

Appellees further contend the appeal should be dismissed for a failure to properly abstract the notice of appeal and the judgment appealed from. Our examination of the record in this regard shows a satisfactory compliance with Appellate Court Rule 6.

We will now turn our attention to the questions raised on the appeal itself.

The first and most serious single question involved in this appeal is the matter referred to by the parties as the "joint verdict." The record discloses that each administrator filed suit under the Wrongful Death Act in a single count against both defendants, Royse and the Railroad. Each administrator, in a single count, alleged wilful and wanton misconduct against Royse in one paragraph, alleged negligence against the Railroad in a separate paragraph, and then in a separate paragraph alleged that the wilful and wanton acts of Royse "and" the negligence of the Railroad were the proximate cause of the death of the intestate. On the basis of the foregoing, each plaintiff claimed damages jointly against Royse and the Railroad company in the sum of $30,000.

Plaintiffs-appellees claimed at the trial and still claim here on appeal that they were authorized to file their suit in this fashion and that having done so, the form of verdict submitted to the jury could only find either (1) for the plaintiff and against both defendants jointly; or (2) find against the plaintiff and in favor of both the defendants, and tendered forms of verdict with related instructions on this basis.

The defendant Railroad Company contended below and contends here that this is erroneous, and that it was entitled to a separate finding as to it, a single defendant, on the question of liability, and tendered a form of verdict with an appropriate instruction which would have permitted the jury to find in favor of the plaintiff and against one defendant and in favor of the other defendant and against the plaintiff. Plaintiffs-appellees objected to the submission of the tendered form of verdict and instruction proposed by the defendant Railroad company and argued below and continue to argue here that if the jury found in favor of either defendant, it was obliged to find in favor of both defendants and against the plaintiff, and as a corollary argued that any verdict in favor of the plaintiff must be against both of the defendants.

In order to answer the issues raised in this regard, it is necessary to examine the historical development of both the substantive and procedural rules regarding "joint tortfeasors," "joint liability," and "joint action."

[3-6] At common law, the original meaning of a "joint tort," in the substantive sense, was that of vicarious liability for concerted action. The common-law rule was that all persons who acted in concert to commit a wrong in pursuance of a common design were held, jointly and severally, liable for the entire result. Each participant was considered to be the agent of the other, engaged in a joint enterprise, and each was, therefore, considered to be liable for the entire damage done to the injured party which was commonly, indivisible. At common law, in a procedural sense, "joint action" meant simply that two or more persons might be joined, properly, as defendants in the same action. The common-law procedural rules as to joinder were extremely strict. Joinder of two or more defendants was limited to cases of concerted action. At common law, if concert of action was not involved, there could be no joinder. These common-law concepts were carried forward into our jurisprudence and continued to be present until the adoption of modern procedural codes. As corollary to these rules, and consistent with the strong policy against joinder, the common law consistently held that when defendants did not act in concert and/or the case did not ...


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