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Mezo v. Smith

JULY 20, 1973.

ALICE MEZO ET AL., PLAINTIFFS-APPELLEES,

v.

OWEN L. SMITH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Williamson County; the Hon. JOHN H. CLAYTON, Judge, presiding.

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

This is an appeal from the Circuit Court, First Judicial Circuit, Williamson County, Illinois. It appears from the record that the plaintiff, Darlene Barnes Robinson, was driving an automobile in which the plaintiff, Alice Mezo, was riding in the right front seat, holding the plaintiff, Eunice Lorraine Barnes, then an infant of fourteen months. The Robinson automobile struck the truck driven by the defendant, Owen L. Smith, and owned by the corporate defendant, Standard Oil Company. The truck was turning into a private drive at the time of the collision. The issue of liability was decided by the jury against the defendants, and verdicts were returned in favor of the plaintiffs and against the defendants in the total amount of $130,000.

The defendants have brought this appeal presenting two issues for review. First, did the trial court abuse its discretion in ordering over objection of both the plaintiffs and the defendants that the cause be tried by a jury of six, and refusing to grant the parties' request for a jury of twelve? Second, were the damages awarded by the jury excessive?

This action was commenced by the plaintiff, Mezo, filing her complaint against the defendant, Smith, claiming damages in the amount of $50,000. The plaintiff demanded trial by jury. A subsequent amended complaint added Standard Oil Company as a party defendant and likewise demanded a trial by jury. A second case by the plaintiffs, Robinson and Barnes, a minor by next friend, against the defendants, Smith and Standard Oil Company, which involved the same transaction was filed some nineteen months later. This complaint was in six counts, each count claiming damages exceeding $10,000, and contained a demand for jury. The defendants filed their answer to the complaint and counterclaimed against the plaintiff, Robinson. The counterclaim was in two counts, the first count seeking damages in the amount of $500, the second count seeking indemnity for any judgment entered against the defendants in favor of the plaintiffs, Mezo and Barnes. The defendants demanded trial by jury on the counterclaims.

The two cases were consolidated by order of the court.

The issues were tried to a jury of twelve on April 1, 1971, and resulted in a mistrial.

The case was again called for a trial on April 17, 1972, at which time the court informed the parties that it would be a trial to a jury of six and not twelve. Both parties objected and filed the following:

"Defendants:

JURY DEMAND

The Defendants do hereby (during the trial of this cause) repeat, renew and restate in writing their prior oral demand for trial by a jury of twelve (12) persons in this cause which prior oral demand was made immediately upon being advised by the Court of a possible requirement of submission to trial by a jury of six (6) persons.

The Defendants do hereby also repeat and renew their rejection of the proposed stipulation for a trial with a jury of less than twelve (12) persons."

Dated: April 18, 1972.

Plaintiffs:

OBJECTION AND ...


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