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Miller v. General Telephone Co.

JUNE 12, 1975.

ROBERT MILLER, PLAINTIFF-APPELLANT,

v.

GENERAL TELEPHONE COMPANY OF ILLINOIS ET AL., DEFENDANTS. — (COLUMBIAN ROPE COMPANY, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Kane County; the Hon. JAMES E. BOYLE, Judge, presiding.

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

Rehearing denied July 22, 1975.

This is an appeal from a judgment in favor of the defendant, Columbian Rope Company, in a suit for personal injury.

The plaintiff, a construction worker, was sitting in a "bosun" chair some 35 feet above the ground when the rope supporting the chair broke, whereby the plaintiff fell to the ground and was severely injured. Suit was brought against the owner of the building, the general contractor, the plaintiff's employer, the retailer of the rope, the wholesaler of the rope, and the manufacturer of the rope, under various theories of liability. Several of the defendants, in turn, brought third-party actions against other named defendants under the active-passive negligence theory.

The accident occurred in December, 1967, but suit was not actually instituted until December, 1969. There followed extensive discovery depositions and the plaintiff filed a second and a third amended complaint. On October 8, 1971, the case was finally set for trial on October 18, 1971. On October 15, 1971, the plaintiff moved for a continuance of the trial to a date some time after November 8, 1971, due to the absence (in Europe) of a physician who was a material expert witness as to the extent of the plaintiff's injuries. At that time the other attorneys were ready for trial. Defendant, Columbian Rope, objected to the continuance and moved for severance of the issues of liability and damages and further for denial of the motion to continue the trial date. The trial court then denied the continuance and ordered the trial to begin on October 18 on the issue of liability only. The plaintiff, before the trial commenced, filed a written motion objecting to the severance of the issues of liability and damages and renewed the motion for a continuance. The motion was denied and the case proceeded to trial on the issue of liability only. The trial resulted in the eventual dismissal of all the defendants except Columbian Rope. A verdict was directed in its favor on the strict liability count and the remaining counts of negligence and implied warranty were then submitted to the jury which found the defendant not guilty on both counts.

The two principal contentions of the plaintiff in this appeal are (1) that the trial court lacked jurisdiction to order a separate trial on the issue of liability only, and (2) that the court erred in directing a verdict for the defendant on the question of strict liability for a defective product. It is also contended that the court erred in allowing the admission of certain evidence and that the verdict itself is against the manifest weight of the evidence.

• 1 We will consider first the jurisdiction of the court to order a separate trial on the issue of liability. The question was not raised in the post-trial motion. However, the plaintiff attempts to avoid the issue of waiver by asserting that the order in question was not a mere error subject to review on appeal but was a void order having no force and effect because the court had no power to order such severance. The distinction between the legal effect of an act beyond the court's jurisdiction and one which is erroneous but within the court's power requires no elaboration. It is well stated in the leading case of Baker v. Brown, 372 Ill. 336, 342-43, where the court said:

"There is a clear distinction between the effect of a judgment which may be set aside or vacated because of error in reaching the wrong conclusion upon the facts or the pleading, and one that is void because of want of jurisdiction of the person or the subject matter. The first is merely erroneous and unless set aside by the same court, or corrected upon review, cannot be collaterally attacked. On the other hand, a judgment by a court lacking jurisdiction is void — in effect it is not a judgment — and may be attacked in any collateral proceeding by showing the lack of jurisdiction."

Like many other fundamental principles of law, however, this distinction is easier to understand than to apply. The plaintiff cites several cases which he believes establish that the order of severance here was beyond the jurisdiction of the court, even conceding the court had jurisdiction of the general class of subject matter involved. Against these the defendant cites respected authority indicating that if the court had jurisdiction of the person and the subject matter it had power to rule on all issues legitimately arising out of the case, although subject to review and reversal by an appellate court if it erred. A review of the cases cited by the plaintiff, however, shows them to be rather special situations not apposite to the case before us. People ex rel. Stone v. Wilson, 111 Ill. App.2d 101, a decision of this court, involved a question of jurisdiction under the Administrative Review Act, where the court's jurisdiction of the subject matter was clearly circumscribed by the statute such jurisdiction was derived from. In Mamer v. Morrison, 62 Ill. App.2d 410, involving a drainage district assessment; Sweitzer v. Industrial Com., 394 Ill. 141, concerning Workmen's Compensation, and in Thayer v. Village of Downers Grove, 369 Ill. 334, construing jurisdiction under a local improvement act, the jurisdiction of the court was a given jurisdiction derived and proceeding from the statute; hence, the subject matter itself defined the jurisdiction and while the court had jurisdiction of the subject matter it was a limited jurisdiction responsive to the purposes of the legislation and easily defeated by overstepping its bounds. Windsor v. McVeigh, 93 U.S. 274, was a case almost 100 years old involving a person discriminated against because he was a Civil War rebel. It is not apposite as the case involved special circumstances of arbitrary and capricious behavior by the trial court amounting to a complete failure of jurisdiction. As the supreme court pointed out, the answer and appearance of the defendant having been stricken because he was a rebel, "[h]is position with reference to subsequent proceedings was not then unlike that of a party in a personal action after the service made upon him has been set aside. A service set aside is never a service by which the action can be upheld." (93 U.S. 274, 282.) The quotation from this case in the appellant's brief couched in general language culled from the discussion of the case is misleading and not pertinent to the facts here. Actually, the case confirms the general proposition advanced by the defendant, rather than the plaintiff.

Mason v. Dunn, 6 Ill. App.3d 448, a decision of this court, was a suit for personal injury arising out of an automobile accident. In that case it was the plaintiff who, for reasons of economy, desired to sever the issues of liability and damages, which he was allowed to do over the objection of the defendant. The plaintiff recovered a judgment and as per stipulation, a second jury was impaneled to assess damages. In his post-trial motion and subsequent appeal the defendant contended that the court erred in severing the issues of liability and damages over the defendant's objection. This court held on appeal that it was error for the trial court to have severed the issues of liability and damages over the objection of the defendant. In so deciding we noted that there were no decisions actually approving such procedure and, in fact, it appeared to be sanctioned only in those jurisdictions where it was expressly provided for by statute or supreme court rule. In considering whether, in spite of the lack of statutory authority for such procedure, it was within the inherent power of the court, we held it was not, saying,

"We conclude that the trial court is without inherent authority to sever the issues of liability and damages in a single action and that such authority must be derived by either Supreme Court rule or legislative enactment. It was therefore error in this case for the trial court to sever the issues over the objection of the defendant." 6 Ill. App.3d 448, 451.

The issue is not discussed, however, in terms of the court's jurisdiction. It is spoken of as an error, not as a void judgment. Nor did the appellant, apparently, frame the issue in terms of jurisdiction. On the contrary, it was the plaintiff-appellee who sought to avoid the error by claiming it was not an error because the order of severance was within the inherent power of the court. In holding that the severance was not within the inherent power of the court we did not hold that the court lacked jurisdiction but rather that its error was not overcome by any inherent power the court possessed. If there had been either precedent, statutory authorization or inherent power to sever the issues, there would have been no error but lacking any of these, the order severing the issues was held to be error.

• 2 The phrase "inherent power" is not synonomous with jurisdiction, which, as stated in Faris v. Faris, 35 Ill.2d 305, is the power of the court to hear and decide the particular matter before it. It is true that where the court's jurisdiction is limited by statute to a certain procedure or a stated order of proof it must act within these strictures to retain jurisdiction but in the general class of cases if the court has jurisdiction of the parties and the subject matter the jurisdiction is not lost by an erroneous exercise of such jurisdiction. In Balzer v. Pyles, 350 Ill. 344, 349, our supreme court said:

"Jurisdiction of the subject matter is the power to adjudge concerning the general question involved, and if a bill or petition states a case belonging to the general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void. If the court had jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached."

In Baker v. Brown, 372 Ill. 336, 341, our supreme court quoted in its opinion upholding the jurisdiction of the trial court, the case of O'Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216 Ill. 354, as follows:

"`* * * Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction. [Citations.] Jurisdiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. * * * Jurisdiction does not depend upon the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may be. * * *'"

The recent case of People ex rel. Scott v. Janson, 10 Ill. App.3d 787 (3rd Dist.) and the sequel to it, People ex rel. Scott v. Janson, 57 Ill.2d 451, in which the appellate court was reversed, are illuminating in considering the general question of jurisdiction of the subject matter. The Attorney General and the State's Attorney for Peoria County filed a complaint against the owner of a garbage dump praying for a temporary injunction restraining the operation of the dump and a fine for violation thereof. The complaint was admittedly "couched in terms of the Environmental Protection Act." The circuit court granted the temporary injunction but at the subsequent hearing on the petition to dismiss it, the court dismissed the injunction because of lack of a showing of an emergency situation, as required by the Environmental Protection Act. However, the court denied the defendant's motion to dismiss the complaint. Subsequently, it was stipulated between the parties that the case would be continued and that one Weeber, an employee of the Environmental Protection Agency, would supervise the operation of the dump until restoration satisfactory to the State was accomplished. It was also stipulated that if the dump was operated without satisfactory restoration, monetary penalties could be imposed by the State which, if not paid, would serve as a final finding of fact binding upon the parties and the defendant would thereafter be punished for contempt without a hearing or motion. Subsequently, a petition for penalties was filed by the State and was not paid, resulting in the incarceration of the manager of the defendant for contempt. On appeal the defendant contended that since the case was brought under the Environmental Protection Act the jurisdiction of the court was bounded by that Act and that after the trial court dismissed the ex parte injunction originally issued on the ground that the emergency conditions required for its issuance were not present, the court then lost jurisdiction of the case and its subsequent actions were void. After careful consideration the appellate court agreed, saying:

"When a statute authorizes prescribed procedures and the court acts contrary to the authority thus conferred it has exceeded its jurisdiction." (10 Ill. App.3d 787, 792.)

The court pointed out that the stipulation between the parties was not binding on the defendant because jurisdiction of the subject matter cannot be conferred upon the court by agreement of the parties.

• 3 On appeal to the supreme court the State contended that the general authority given by the Attorney General's Act (Ill. Rev. Stat. 1973, ch. 14, par. 12), providing for the bringing of a suit in the circuit court to prevent pollution could be interpreted as allowing the State to proceed in the circuit court with a civil suit relative to violations of the Environmental Protection Act and that such action is not exclusively within ...


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