Appeal from the Circuit Court of Cook County, County Division;
the Hon. JAMES E. MURPHY, Judge, presiding. Appeal dismissed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The question presented in this case is whether the plaintiff-appellant has properly appealed from an order granting the defendant a new trial.
The action was one for personal injuries and the jury returned a verdict for the plaintiff in the sum of $1,000. The defendant filed a motion for a new trial on the principal ground that the verdict was contrary to the weight of the evidence. Subordinate grounds, alleged in general terms, were that the verdict was contrary to law, that the jury ignored the instructions of the court and that it was influenced by sympathy. The motion was allowed, the plaintiff's judgment vacated and a new trial ordered. A few days later the plaintiff waived his right to a new trial and filed an affidavit in support of his motion for waiver. Subsequently he obtained, on his own motion, an order striking that portion of the original order which granted a new trial and substituting in lieu thereof the following language:
"It is further ordered that the defendant, Chicago Transit Authority, a Municipal Corporation, go hence without day, without prejudice to the appeal rights of either party."
The plaintiff has prosecuted a direct appeal from the order vacating his judgment which as amended includes the above quoted language.
His purpose in attempting this method of appellate review is to circumvent Supreme Court Rule 30 which governs appeals from orders granting new trials and which was in effect on May 8, 1964, the date the order was entered. It provides:
"On leave granted by the Appellate Court an appeal may be taken to that court from an order granting a new trial."
The plaintiff chose not to avail himself of this leave to appeal provision. He reasoned that if he could get an order in the trial court that was final in itself he could force this court to entertain his appeal without first obtaining leave. Accordingly, he waived his right to a new trial and moved the trial court to enter judgment for the defendant which judgment effectively disposed of the case as the words, "the defendant . . . go hence without day" are held to be the language of final judgment for a defendant. Chicago Portrait Co. v. Crayon Co., 217 Ill. 200, 75 N.E. 473; Barrow v. Robinson, 28 Ill. App.2d 358, 171 N.E.2d 663. The plaintiff then appealed from this judgment. The issue thus presented is whether a party can arbitrarily circumvent the established method of appealing from an order granting a new trial by sacrificing his right to the new trial and securing a final and therefore appealable judgment order against himself.
The plaintiff's reasons for endeavoring to bypass Rule 30 are twofold: he does not want to retry his case and he wants his appeal judged by a standard different from the one that is applied to petitions for leave to appeal from orders granting a new trial.
He does not want to retry his case because he fears the result of another trial. He candidly acknowledged in the affidavit filed in support of his motion for an adverse judgment that his case would probably be less strong if tried a second time because there was admitted into evidence in the first trial, by agreement, a hospital record containing hearsay evidence favorable to him. He thinks that the hospital record is vulnerable to objection and that it is unlikely that the defendant would make the same "blunder" in another trial.
By avoiding a conditional appeal the plaintiff hopes to obtain the application of a more advantageous standard to the evidence produced in the trial court. Although he contends that the evidence sustained the verdict and that this court should so find, he was not so sure that this would be the finding under the standard that has developed pertaining to appeals from orders granting new trials. In Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill. App.2d 354, 199 N.E.2d 618, this court said:
"A motion for a new trial is addressed to the discretion of the trial judge and his judgment thereon will not be reversed except for a clear abuse of such discretion, which must affirmatively appear in the record. The trial judge has an advantage over a court of review in that he has an opportunity to observe at firsthand the conduct of the trial, the demeanor of witnesses and counsel, the reaction of jurors to evidence and argument and the effect upon them of incidents that occur during the trial. If he is of the opinion that the verdict of the jury is not sustained by a preponderance of the evidence or that improper conduct or argument influenced the verdict, he should grant a new trial."
When a petition is filed asking leave to appeal from an order granting a new trial, the reviewing court examines the record and studies the briefs to ascertain if the trial court was within its discretion in depriving the victorious party of his judgment. If there is a fairly debatable question whether the discretion was properly exercised the petition will be granted. Where the trial court has not stated the reason for its order, the reviewing court turns to the losing party's post-trial motion, for it is presumed that the errors there alleged prompted the order. In the instant case the court gave no explanation for entering the order. The defendant's post-trial motion, however, repeatedly asserted but one specific error: that the verdict was against the weight of the evidence. Under these circumstances it must be presumed that the trial court was of the opinion that the evidence did not preponderate in favor of the plaintiff, for it is the duty of the trial court to set aside a jury verdict if, in the judgment of the court, the verdict is not in accord with the weight of the evidence. Donelson v. East St. Louis & S.R. Co., 235 Ill. 625, 85 N.E. 914; In re Estate of Velie, 318 Ill. App. 550, 48 N.E.2d 431; Wagner v. Chicago Motor Coach Co., 288 Ill. App. 402, 6 N.E.2d 250; Barthelman v. Braun, 278 Ill. App. 384.
The reviewing court in this case, therefore, would have had but one task that of examining the evidence to see if it supported the jury's verdict; and it would have had but one test that of the greater weight of the evidence. Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 451; Goodrich v. Sprague, 385 Ill. 200, 52 N.E.2d 250; Bollin v. Galesburg Horse & Mule Co., 276 Ill. App. 256. If the reviewing court concluded that the evidence preponderated in the defendant's favor or that the trial court's discretion was not abused, the order would be affirmed. On the other hand, if the reviewing court concluded that the evidence preponderated in the plaintiff's favor, the order would be reversed and the case ...