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Takecare v. Loeser

JULY 15, 1969.

CHARLES TAKECARE AND CLEOPHUS METCALFE, PLAINTIFFS-APPELLANTS,

v.

JULIUS LOESER AND ALFRED LOESER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. GEORGE KASSERMAN, Judge, presiding. Judgment reversed and cause remanded with directions.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

The plaintiffs, Charles Takecare and Cleophus Metcalfe, brought this action against defendants, Julius Loeser and Alfred Loeser, to recover damages arising out of an automobile accident in which Takecare was driver of one automobile and Metcalfe was his passenger. Alfred Loeser died prior to trial, and the suit proceeded against the surviving defendant, the driver of the other automobile. All parties stipulated to a trial by eleven jurors. After trial, the jury returned a verdict in favor of Cleophus Metcalfe against the defendant, and awarded damages in the sum of $12,000. The verdict further found the issues in favor of the defendant and against the plaintiff Charles Takecare.

The cause was submitted to the jury in the early evening on May 20. By agreement the parties waived the polling of the jury and the verdict was received by the judge at 11:00 p.m. The judge then discharged the jury. On the following morning, over objection of plaintiff, the trial court entered a judgment order which stated that after counsel and several of the jurors had left the courtroom, the court was informed by the foreman and five other jurors that it was their intention to return a verdict finding in favor of defendant and against both plaintiffs. The order further stated that the court was further informed that the jury also intended to find in favor of plaintiff Metcalfe against plaintiff Takecare. The court thereupon entered judgment in favor of the defendant against both plaintiffs, reciting that this was in accordance with the real intention of the jury.

Plaintiff Metcalfe alone appeals, contending that the judgment order entered contrary to the verdict was error and requesting that this court reverse the order and enter judgment based upon the jury's verdict.

Before considering that issue, we first must resolve defendant's contention that plaintiff cannot raise this issue on appeal because he failed to file a post-trial motion in the trial court. Defendant relies on section 68(1)(2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 68.1(2)) which states in part: "Relief desired after trial in jury cases . . . must be sought in a single post-trial motion." Under this section, it is generally true that in jury trials relief not sought in a post-trial motion cannot be urged as error on review. City Nat. Bank & Trust Co. of Rockford v. Almond, 42 Ill. App.2d 314, 192 N.E.2d 297 (1963). However in Keen v. Davis, 38 Ill.2d 280, 230 N.E.2d 859 (1967), the court held that a post-trial motion was not necessary where the trial court granted a directed verdict, concluding at page 282:

"We see nothing in the statute to indicate a legislative intent that a post-trial motion be filed after a directed verdict. In fact, the contrary is indicated since no such motion is required in non-jury cases (Section 68.3) or cases in which a jury has failed to reach a verdict (Section 68.1(5))."

See also Larson v. Harris, 77 Ill. App.2d 430, 222 N.E.2d 566 (1966), affirmed 38 Ill.2d 436, 231 N.E.2d 421 (1967).

The reasoning in the above cases should apply even more cogently in the instant situation. On the morning after verdict, over objection of plaintiff, the trial court entered judgment contrary to the verdict which had been rendered. We conclude that it would be illogical to require the plaintiff to appear again before the same judge prior to seeking a review in this court. We therefore find that the plaintiff was not required to file a post-trial motion in order to preserve his appeal.

We next proceed to a consideration of plaintiff's contention that the action of the trial judge in entering judgment contrary to the jury verdict was erroneous. The defendant concedes that the verdict was proper on its face, but argues that the trial court, having determined the true intention of the jury, was compelled to enter judgment on that intention.

Jury verdicts generally cannot be impeached even by affidavit. Smith v. Illinois Valley Ice Cream Co., 20 Ill. App.2d 312, 156 N.E.2d 361 (1959); Palmer v. Poynter, 24 Ill. App.2d 68, 163 N.E.2d 851 (1960); Ault v. Washburn, 72 Ill. App.2d 161, 218 N.E.2d 108 (1966). In the instant case, there is not even an affidavit to support the action of the trial court.

In Loucks v. Pierce, 341 Ill. App. 253, 93 N.E.2d 372 (1950), the jury returned a verdict in favor of the defendant. The plaintiff filed a motion for a new trial, based upon an affidavit of a juror that there were some irregularities in the jury deliberations. The trial court granted the motion for a new trial, apparently on the basis of private investigations made by the judge. The court stated at page 256:

"If the trial court based the allowance of the new trial upon his own extra-judicial investigation, it must be held error. The rights of litigants in a court of record cannot be left to the mercy of private remarks in the judge's ear."

In People v. Rivers, 410 Ill. 410, 102 N.E.2d 303 (1951), a criminal case, the court reversed a conviction because of an extra-judicial investigation by the judge, and stated at page 419:

"However innocently any private investigation may have been made, for whatever purpose, and regardless of its results, the defendants' constitutional right to have everything considered ...


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