APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from a verdict and judgment for plaintiff, against Gloria Dalpos (defendant), resulting from personal injuries received in a collision between plaintiff's motorcycle and an automobile operated by defendant. *fn1 On appeal, defendant contends that (1) comments by plaintiff's attorney in closing argument regarding the special interrogatory were improper; (2) certain statements by plaintiff's counsel during closing argument were highly prejudicial and deprived her of a fair trial; (3) plaintiff was guilty of contributory negligence as a matter of law; (4) the court erred in giving and refusing certain instructions; and (5) the verdict is against the manifest weight of the evidence.
During the trial, the court submitted the following interrogatory tendered by plaintiff, which was answered, "No" by the jury:
"Do you find from the evidence that at and immediately prior to the collision in question the plaintiff was guilty of any contributory negligence which was a proximate cause of his injuries?"
In his final argument to the jury, counsel for plaintiff stated:
"If you find for Richard Thomas, and then you answer the special interrogatory that he was not in the exercise of due care, then you have contradicted your verdict; and that is illogical; and that I don't want you to do. Based upon your findings, if you find for Richard Thomas, then you have got to answer the special interrogatory that, indeed, under the circumstances that night he exercised due care for his own safety. Otherwise you contradict your verdict, and that gets us nowhere."
No objection was made to this argument, but it was asserted as error in defendant's post-trial motion.
The leading authority in Illinois on the degree of latitude allowed in closing argument concerning a special interrogatory appears to be Sommese v. Maling Brothers, Inc., 36 Ill.2d 263, 222 N.E.2d 468. There, in final argument and without any objection made, plaintiff's attorney informed the jury that the special interrogatory supersedes the verdict, that it had been "slipped in" by defendant and that the jury should harmonize its answer to the interrogatory with the verdict so as not to "deprive this woman to any right of recovery." The court held such remarks to be improper in that (1) they informed the jury of the source of the interrogatory; and (2) they defeated the purpose of the special interrogatory by advising the jury that its answer thereto should conform to the general verdict so as to protect the latter without regard to the evidence.
In Sommese, as here, the error was raised for the first time on the post-trial motion. That court, in considering the assignment of error, quoted from Belfield v. Coop, 8 Ill.2d 293, 134 N.E.2d 249:
"`If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.'" 36 Ill.2d 263, 268.
In reversing and remanding, the Sommese court stated:
"It is generally recognized that the function of a special interrogatory is to require the jury's determination as to one or more specific issues of ultimate fact and is a check upon the deliberations of the jury. `Special interrogatories are used for the purpose of testing the general verdict against the jury's conclusions as to the ultimate controlling facts.' Wise v. Wise, 22 Ill. App.2d 54, 58.
It is clear that plaintiff's attorney improperly alerted the jury to the fact that its decision to assess damages would be nullified by an affirmative answer to the interrogatory. Thus, the safeguard against a jury awarding damages out of passion or prejudice or sympathy without first making specific factual determinations and then applying the law thereto was thwarted." 36 Ill.2d 263, 267-8.
In support of its decision, the Sommese court cited Westbrook v. Chicago & Northwestern Ry. Co., 248 Ill. App. 446, and Swanson v. Chester Johnson Electric Co., 5 Ill. App.2d 175, 125 N.E.2d 304. In Westbrook, plaintiff's counsel suggested certain answers to two special interrogatories and told the jury that having so answered, "Then your verdict will ...