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Martino v. Barra

JANUARY 31, 1973.

CLARENCE H. MARTINO, ADMR., OF THE ESTATE OF HERBERT L. HAZEN, JR., DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

NED THOMAS BARRA ET AL., DEFENDANTS-APPELLEES — (MT. VERNON TIRE SERVICE CORPORATION, DEFENDANTS-APPELLANTS.) ANTON HALMEL ET AL., COUNTERDEFENDANTS-APPELLEES,

v.

NED THOMAS BARRA ET AL., COUNTERPLAINTIFFS-APPELLEES — (MT. VERNON TIRE SERVICE CORPORATION, COUNTERDEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

This action was brought to recover damages for the wrongful deaths of Herbert Hazen, Jr., Josephine Hazen and Charlotte Thacker. There were multiple plaintiffs and defendants. The jury returned a verdict on February 3, 1964, for all the defendants against the plaintiffs. Post-trial motions were filed by the plaintiffs for judgment notwithstanding the verdict and for a new trial on the issue of damages only. Other post-trial motions were also filed by the respective parties. Plaintiffs' motions for judgment notwithstanding the verdict and for a new trial on the issue of damages only were granted as to defendants, Ned Thomas Barra and Mt. Vernon Tire Service (hereinafter referred to as Mt. Vernon) on March 6, 1964. Motions by certain cross-claimants were also granted.

Defendants Barra and Mt. Vernon appealed to this court. On October 5, 1965, the Appellate Court filed an opinion reversing the order of the Circuit Court and remanding the cause with directions. On rehearing, however, the Appellate Court dismissed the appeal with respect to three of the appellees on the ground that the Circuit Court order was not final and appealable. (Martino v. Barra, 67 Ill. App.2d 328, 215 N.E.2d 12.) The Supreme Court affirmed the dismissal of the appeal and remanded the cause to the Circuit Court for further proceedings. Martino v. Barra, 37 Ill.2d 588, 229 N.E.2d 545.

On remand to the Circuit Court, the plaintiffs and counter-plaintiffs moved the court to vacate the judgment notwithstanding the verdict and to allow them to amend their post-trial motions to request a new trial on all the issues. The trial court, over objections, granted their motions, and ordered a new trial as to all issues and all parties.

On January 15, 1969, the defendants, Ned Barra, Leon B. Stilley Construction Co., Leon B. Stilley, and Mt. Vernon Tire Service Corp., pursuant to Supreme Court Rule 306, Ill. Rev. Stat. 1969, ch. 110A, par. 306(a)(1), jointly petitioned this Court for leave to appeal from the order of the Circuit Court granting the new trial. Leave to appeal was denied on May 27, 1969. The cause was then retried before another judge. On retrial, a jury found Mt. Vernon solely liable to all plaintiffs and counter-plaintiffs. The amount of the judgments entered on the verdicts is not here in issue.

On appeal from the judgment entered against it, Mt. Vernon now contends that (1) the original trial court erred in entering judgment against Mt. Vernon notwithstanding the verdict of the jury, (2) the subsequent order by the same judge granting a new trial on all the issues constituted an abuse of discretion and was contrary to the instructions of the Supreme Court, (3) on retrial, the trial court improperly instructed the jury with respect to the theory of res ipsa loquitur, and (4) erroneously permitted the jury to hear evidence implying that the only insurance coverage available was that of Mt. Vernon.

Initially, Mt. Vernon is requesting that we again pass upon the question of whether the Circuit Court erred in setting aside the jury verdict and granting a new trial. This we cannot do. The record reveals that Mt. Vernon, jointly with others, filed a petition for leave to appeal from the order granting a new trial. In the petition, filed in this court under file number 53711 on January 15, 1969, Mt. Vernon contended that the order granting a new trial on all issues was inconsistent with the views of this court and with the mandate of the Supreme Court. The arguments made in the petition are substantially similar to Mt. Vernon's contentions on this appeal. The Appellate Court denied the petition for leave to appeal, and the parties proceeded to retry the case.

• 1 Supreme Court Rule 306, formerly Rule 30, provides that, "An appeal may be taken from an order of the Circuit Court granting a new trial only on the allowance by the Appellate Court of a petition for leave to appeal," Ill. Rev. Stat. 1969, ch. 110A, par. 306(a)(1). This is the sole means of securing review of an order granting a new trial. Rodriguez v. Chicago Transit Authority, 58 Ill. App.2d 150, 162, 206 N.E.2d 828, 834-5.

• 2 Mt. Vernon's petition for leave to appeal from the order of the trial court granting a new trial was denied by this court on May 27, 1969. Both the original order granting judgment notwithstanding the verdict of the jury and ordering a new trial of the issue of damages, and the subsequent revised order granting a new trial on all the issues were considered by this court at that time and are not properly before us on this appeal.

• 3 We note that Mt. Vernon predicates its argument on the sole authority of remarks contained in the original Appellate and Supreme Court opinions. In a subsequent opinion, the Supreme Court, affirming the Appellate Court, dismissed the appeal on the ground it was piecemeal, and remanded the cause to the Circuit Court. Supreme Court Rule 369 (b), Ill. Rev. Stat. 1969, ch. 110A, par. 369(b), states:

"When the reviewing court dismisses the appeal * * * and the mandate is filed in the circuit court, * * * proceedings may be conducted as if no appeal had been taken."

Since the Appellate and Supreme Courts found they had no jurisdiction, the original opinions on which Mt. Vernon relies can have no effect.

Mt. Vernon next contends that on the re-trial of this case, the court over appellant's objection improperly instructed the jury with respect to the theory of res ipsa loquitur. The instruction complained of reads as follows:

"Under one of the theories of the plaintiffs and counter-plaintiffs alleged against the defendants, Ned Thomas Barra, Leon B. Stilley d/b/a Leon B. Stilley Construction Company, and Mt. Vernon Tire Service, Inc., the plaintiffs and ...


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