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Scott v. Hernon

DECEMBER 17, 1971.

THOMAS SCOTT, PLAINTIFF-APPELLEE,

v.

JAMES HERNON ET AL., DEFENDANTS, — (THE CITY OF CHICAGO, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ELMER N. HOLMGREN, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 8, 1972.

This is an action to recover damages for personal injuries suffered by plaintiff arising out of an automobile collision on April 6, 1962, between a cab driven by plaintiff, and defendant, James J. Hernon (hereafter "Hernon"). The defendant, City of Chicago (hereafter "City"), was joined in the suit based upon a defect or defects located in the street at the intersection where the collision occurred. Plaintiff alleged that negligent acts and omissions of Hernon and the City were jointly and severally the proximate cause of his injuries.

After the close of plaintiff's evidence, the City moved for a directed verdict. This motion was denied. At the close of all evidence the City again moved for a directed verdict. The trial court initially reserved its ruling but subsequently denied the City's motion.

Two special interrogatories were submitted to the jury. The first requested the jury to make a finding as to whether plaintiff was free from any contributory negligence which was a proximate cause of the collision. The second requested a special finding as to whether negligence of the City was a proximate cause of the injury to plaintiff.

The jury returned a verdict finding in favor of plaintiff and against both Hernon and the City, assessing damages in the sum of $125,000. The jury answered the special interrogatories finding plaintiff free from contributory negligence and the negligence of the City to be the proximate cause of plaintiff's injury.

A post-trial motion was filed by the City preseting motions for judgment notwithstanding the verdict, new trial and remittitur. This motion was denied and judgment was entered on the verdict against defendants who both appealed, but on March 11, 1970, plaintiff's motion to dismiss the appeal of Hernon for failure to file briefs and abstract was allowed.

The City first contends that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict. Plaintiff argues, however, that the answers of the jury to the two special interrogatories stand unchallenged and therefore the ruling by the trial court on the City's motions for directed verdict and judgment notwithstanding the verdict are not properly before this court. Plaintiff correctly claims that in its post-trial motion the City only sought: (1) a judgment notwithstanding the verdict; (2) a new trial; or (3) a remittitur. The City filed no motion to set aside the jury's special findings; made no objection to these findings in their post-trial motion; made no suggestion either here or in the trial court that they were contrary to the manifest weight of the evidence; nor did it make any reference whatsoever to the special interrogatories in its initial brief, but only in its reply brief. Plaintiff claims that the failure by a party to move in the trial court to set aside the answers of the jury to special interrogatories either by separate motion or by specific reference in the post-trial motion forecloses the point on review.

• 1 In Westlund v. Kewanee Public Service Co., 11 Ill. App.2d 10, defendant submitted a special interrogatory which the jury answered, "No." Defendant did not object in the trial court to the finding on the special interrogatory either in its motion for judgment notwithstanding the verdict, or its motion for a new trial, or by motion to set aside the special finding or otherwise. As the court at page 17 stated:

"A party is conclusively bound by a special finding of fact by a jury in answer to a special interrogatory submitted by him, unless specific objection thereto is made in or the question is raised in the trial court in the party's motion for new trial or motion to set aside the special finding of fact; the question is not preserved by the party's motion to direct a verdict, or by a general objection in his motion for new trial that the verdict is contrary to the manifest weight of the evidence; a special finding in and of itself, if properly objected to, is no more binding upon the party than is the general verdict, and he is entitled to question the correctness of the special finding upon a motion for new trial or motion to set aside the special finding, but the objection to a special finding in order to be effective must be specific, and a general objection in a motion for new trial that the verdict is contrary to the manifest weight of the evidence is not sufficient for that purpose: [Citing cases.]"

The City contends that even though it filed no separate motion objecting to the special findings of the jury, in points 7 and 8 of its post-trial motion for judgment notwithstanding the verdict it preserved these special findings for review in this court:

"7. The plaintiff has failed to present evidence that the depression in the street located in the intersection of East End Avenue and Seventy-fifth Street where the plaintiff's cab collided at a right angle with the Hernon vehicle, proximately caused his injury.

8. The plaintiff has failed to establish that he was free from contributory negligence."

These allegations were realleged by the City in its motion for a new trial.

Section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 68.1) states:

"A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion."

• 2 The City argues that the issue is one of statutory construction and that this court must determine whether the strict formality of pleading is required; that "[t]he issue, therefore, becomes one of whether or not the above [paragraphs 7 and 8] constitutes sufficient `specific reference' in defendant's [the City's] post-trial motion to preserve the issues of proximate cause and freedom from contributory negligence." The City concludes that the "magic words" using the term "special interrogatory" is not required for this court to review the jury's special findings based upon the City's statement of the subject matter of those findings set forth in its post-trial motion. However, based on the Westlund decision, we find that paragraphs 7 and 8 of the City's post-trial motion do not sufficiently specify its objections to the jury's special findings of fact nor particularly request that the jury's answers to the "special interrogatories" be set aside.

• 3 The City also claims that even assuming it did fail to object with the requisite specificity, there was no waiver of the issue of the trial court's ruling on the motions for directed verdict. The City cites Brimie v. Belden Mfg. Co., 287 Ill. 11, in support of its argument. The City argues that Westlund, supra, found its basis in Brimie and that from Brimie "[i]t is therefore obvious that the Supreme Court did not find the failure to object to the special finding as conclusive on the issue of error in ruling upon the motion for ...


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