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Uebelein v. Chicago Transit Authority

SEPTEMBER 6, 1967.

PAULINE UEBELEIN, PLAINTIFF-APPELLEE,

v.

CHICAGO TRANSIT AUTHORITY, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. IRWIN N. COHEN, Judge, presiding. Judgment affirmed.

GOLDENHERSH, J.

In this appeal defendant seeks reversal, without remandment, of the judgment of the Circuit Court of Cook County, entered upon a jury verdict in favor of plaintiff in the amount of $11,144.55.

Defendant's grounds for reversal are summarized as follows: (a) the trial court admitted incompetent testimony (b) that with the incompetent testimony excluded, the evidence was insufficient, as a matter of law, to establish any liability on the part of defendant (c) that if for the purpose of argument the incompetent evidence should be considered competent, the evidence was insufficient, as a matter of law, to establish liability on the part of defendant, and the court should have set aside the verdict and entered judgment in favor of defendant.

In its post-trial motion defendant stated that the verdict is contrary to the law, and contrary to the manifest weight of the evidence, that the evidence is insufficient as a matter of law to establish any liability on the part of the defendant, that the court erred in failing to grant the motion of the defendant for a directed verdict "at the close of the evidence received for and on behalf of the plaintiff," and that the court erred in its rulings admitting certain specified evidence offered by plaintiff, and excluding evidence offered by defendant.

Defendant did not move for a new trial, but asked only that the court "set aside the verdict and judgment entered herein and enter judgment in favor of the defendant."

Plaintiff contends (a) that defendant, by its failure to move for a new trial in the circuit court, and by its seeking reversal without remandment in this court, has waived error, if any, in the trial court's rulings on evidence, and (b) by its failure to renew, in its post-trial motion, its motion for a directed verdict at the close of all of the evidence, has waived any contentions with regard to judgment notwithstanding the verdict, or for a directed verdict at the close of all of the evidence.

Because plaintiff's first contention is directed to the permissible scope of review, and the latter to whether review has been waived, her second contention must be considered first.

The statutory provisions governing post-trial motions are set forth in section 68.1 of the Civil Practice Act (c 110, § 68.1, Ill Rev Stats 1965). Paragraph (1) provides: "If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (a) grant the motion or (b) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion." Paragraph (2) provides in part, ". . . Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury, even though no motion for directed verdict was made or if made was denied or ruling thereon reserved. . . ."

In our opinion, although defendant did not comply with paragraph (1), its assertion, in its motion, "that the evidence is insufficient as a matter of law to establish any liability on the part of the defendant," is sufficient under paragraph (2) to preserve for review the same issues as are presented upon appeal from denials of motions for directed verdict, and for judgment notwithstanding the verdict.

In People v. Washington, 23 Ill.2d 546, 179 N.E.2d 635, the Supreme Court said at page 548, ". . . it has long been the rule in civil cases that a motion for a directed verdict made at the close of the plaintiff's case is waived when the defendant introduces evidence after the motion has been denied." Our review, therefore, is limited to those issues reviewable upon appeal from a judgment entered after denial of a motion n.o.v. Under the holding in Pedrick v. Peoria & Eastern R. Co., 37 Ill.2d 494, 229 N.E.2d 504, the only question presented on appeal from such judgment is whether "all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

We turn now to the question of whether defendant's failure to move for a new trial in the circuit court precludes review of its contentions with respect to error in the trial court's rulings on the admissibility of evidence.

Defendant contends that the court erred in admitting evidence offered by plaintiff because the evidence was not "competent." Relying upon Knudson v. Knudson, 382 Ill. 492, 46 N.E.2d 1011, and Day v. Barber-Colman, 10 Ill. App.2d 494, 135 N.E.2d 231, defendant argues that in reviewing the trial court's ruling on its post-trial motion, this court may consider only "competent" evidence.

Assuming, arguendo, that this latter contention is correct, the problem presented is to define "competent" evidence. An examination of Wigmore, McCormick, Gard and the Model Code of Evidence fails to reveal that the term "competent" evidence is used or discussed. The only effort on the part of an appellate court in Illinois to define the term is found in Wood v. Prudential Ins. Co. of America, 271 Ill. App. 103, where relying upon Corpus Juris, at page 110, the court said "Competent evidence is that `which, in respect to evidence, means the characteristic of being that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case.' 22 CJ, p 192." With due respect to our predecessors, we submit that upon reading this definition the reason for Shepard's Citator's failure to show subsequent reference thereto is readily perceptible.

Upon the authority of the cases cited by defendant, we agree that in determining the issue presented, a reviewing court may ...


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