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Kimes v. Trapp

NOVEMBER 5, 1964.

ELMER KIMES, PLAINTIFF-APPELLANT,

v.

BERTHA TRAPP, ET AL. (MOSEY YANELLO), DEFENDANT-APPELLEE.



Appeal from the Circuit Court of LaSalle County; the Hon. HOWARD C. RYAN, Judge, presiding. Reversed and remanded.

SCHEINEMAN, J.

The plaintiff, an assistant police chief, was called upon to eject from a tavern a disorderly inebriant. While so engaged, the officer slipped and fell, and the defendant, Mosey Yanello, jumped on him and brutally stomped him. The resulting injuries were severe and required extensive surgery. Plaintiff has been retired permanently from active duty, thus ending his salary of $5,932 per year, and he has had no employment since.

Plaintiff sued two dramshops under the Dramshop Act, also his assailant, charging a malicious and wanton assault, also the owners of the premises for negligent maintenance. The ad damnum claimed from this defendant was $45,000. (Amended by leave of court to $60,000.)

The jury was instructed that, if either or both of the defendant dramshops were found liable, the total amount allowed against either or both may not exceed $15,000 and that damages could not be apportioned between them.

The jury was also instructed as to the elements of actual damages and was informed they could allow additional damages as punishment of Mosey Yanello under certain defined conditions. A special interrogatory in proper form inquired whether defendant Yanello wantonly and maliciously assaulted plaintiff, and was malice the gist of the action against this defendant.

The defendants tendered separate forms of verdict for each party. Plaintiff objected to separate verdicts because of the instruction limiting the recovery against dramshops to $15,000, which would be improper as to other defendants. The objection was overruled, and the separate forms of verdict were given. There has resulted some confusion which should not be chargeable to the plaintiff.

The jury returned separate verdicts for plaintiff against each defendant, as follows: $15,000 against each of the two dramshops, $12,500 against the owners of the premises under the negligence count, and $12,500 against defendant Yanello on the assault count. Judgments were promptly entered.

Thereafter the court allowed the post-trial motion of the owners of the premises. All other post-trial motions were overruled, including those filed by Mosey Yanello, and the judgments were allowed to stand. At that time (August 1, 1962) the court deemed it clear the jury intended to compensate plaintiff in excess of $15,000. And, because of the jury's affirmative answer to the special interrogatory, the court included in the judgment a recital that the jury had found malice was the gist of the action.

It is the law that the jury's intention may be construed, not only from the actual verdict, but from consideration of the whole record that was before the jury, and the court will enter proper judgments thereon. Western Springs Park Dist. v. Lawrence, 343 Ill. 302, 175 N.E. 579; Bencie v. Williams, 337 Ill. App. 414, 86 N.E.2d 258.

While the plaintiff's recovery was limited to $15,000 as to dramshops, this is not a limitation on total recovery against all tort feasors, and additional amounts could be allowed up to the amount claimed if supported by evidence. Slone v. Morton, 39 Ill. App.2d 495, 188 N.E.2d 493.

From the facts in this case and the instructions, this court is of the opinion that the trial judge correctly interpreted the verdicts and that plaintiff was entitled to a judgment against Yanello for the additional damages which the jury may have found, including exemplary damages. Unfortunately, the trial judge some months later changed his mind in the following procedure:

The dramshops settled with plaintiff for $14,500 on covenants not to sue and dismissed their appeal. The other defendant, Yanello, paid nothing, so the plaintiff obtained a writ of attachment of the body against him in December, 1962.

Thereafter this defendant filed a motion to quash the writ and a motion to require the clerk to enter satisfaction of the judgment against him. This is on the theory that plaintiff had recovered more than the judgment against this defendant, and that enforcement of this judgment would permit double recovery for the same injury. The trial court allowed both motions.

The facts are that this trial occurred two and one-half years after plaintiff was injured. During this period he had surgery several times. He lost his position which had paid nearly $6,000 per year, he was disabled from further employment, and the medical testimony was that his disability was permanent. It is plainly apparent that $15,000 is not ...


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