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Robbins v. Professional Construction Co.

OPINION FILED JANUARY 31, 1977.

NANCY CAROL ROBBINS, ADMR'X OF THE ESTATE OF ALVIN LEE ROBBINS, PLAINTIFF-APPELLEE,

v.

THE PROFESSIONAL CONSTRUCTION CO., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kankakee County; the Hon. WAYNE P. DYER, Judge, presiding.

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

Defendants, the Professional Construction Co., a corporation, and Harold E. Pulliam, their employee, appeal from a judgment of the Circuit Court of Kankakee County in the sum of $120,000 subject to reduction by the sum of $23,500, the amount received by plaintiff Nancy Carol Robbins, administratrix of the estate of Alvin Lee Robbins, in settlement from another potential defendant.

A wrongful death action was brought by the administratrix of the estate of Alvin Lee Robbins to recover for pecuniary injuries sustained by the widow and next of kin of decedent. In the first trial of this cause, the jury returned a verdict for plaintiff in the sum of $25,000. The trial court reduced the jury's award by $23,500, the amount received in settlement from a potential defendant, by way of a covenant not to sue. Plaintiff then filed a post-trial motion contending that the damages awarded by the jury were inadequate. The trial court vacated the judgment and granted a new trial solely on the issue of damages. Defendants filed a petition for leave to appeal from the order granting a new trial solely on the issue of damages in this court in case No. 75-9, in 1975, and this court at that time denied the petition for leave to appeal. In the second trial, which was held on the issue of damages only, the jury returned a verdict for plaintiff in the sum of $120,000, and judgment was entered on the jury's verdict after reduction by the amount paid to plaintiff as the result of the covenant not to sue another potential defendant.

On appeal in this court, defendants contend that the trial court was in error (1) in granting a new trial on the issue of damages only, (2) in the denial of defendant's motion for judgment notwithstanding the verdict, (3) in striking a portion of defendant's post-trial motion requesting a new trial on ground that the jury's verdict was against the manifest weight of the evidence, and (4) affirmatively requesting that this court grant defendants a new trial on the contention that the jury's verdict was against the manifest weight of the evidence.

The incident which caused the death of Alvin Lee Robbins occurred on September 8 or 9, 1971, on Route 17, near the intersection with Warner Bridge Road in Kankakee County, Illinois. Route 17 at the time and in the area involved, was a straight, level, two-lane road, running east and west, and marked by two solid lines on the north and south shoulders and a slashed black and white line in the middle. The posted speed limit was 65 miles per hour. The weather was clear at the time and the road was dry. At approximately 7:20 a.m. on that date, Bonita Kirchner was driving her Ford automobile westbound on Route 17. As the Kirchner vehicle approached the Warner Bridge Road intersection, Kirchner applied the brakes to her vehicle, apparently to avoid colliding with slow-moving traffic in the westbound lane of Route 17. The Kirchner vehicle then skidded approximately 42 inches into the eastbound lane of traffic. At that point, the Kirchner vehicle collided with a truck, traveling eastward, owned by defendant Professional Construction Co. and driven by defendant Harold E. Pulliam. He had a passenger in the truck named William Trainor, who was also an employee of Professional Construction. The impact of the Kirchner vehicle with the left side of the truck, tipped the truck to the right, so that only the right-side tires of the truck were in contact with the road. The impact also caused the truck to swerve to the right and go partially onto the gravel shoulder of the road. The left front wheel of the truck was turned at an angle, in a locked position. The truck then bounced on its left-side tires and proceeded in a generally unstable condition. After proceeding on the shoulder in an easterly direction for about 50 feet, the truck cut back onto the highway, across the center strip, and collided with an automobile driven by decedent Robbins. Decedent's vehicle, at that time, was traveling at 20 to 25 miles per hour in a westerly direction, in its proper lane of traffic. Just prior to the collision, decedent was attempting to pull his vehicle off the road. The truck was traveling at between 40 to 60 miles per hour when it struck the automobile driven by the decedent with the right front side of the truck. Alvin Lee Robbins died from injuries suffered at the collision.

After the collision, skidmarks were noted 89 feet in length going from the westbound lane of Route 17 into the eastbound lane. Another set of skidmarks were 29 feet in length. Both sets of skidmarks were basically in the middle of the road. The skidmarks stopped where they came together. When the Professional truck came to rest after the collisions, its tie rod was broken on the left side.

Plaintiff, as administratrix of the estate of Alvin Lee Robbins, filed the wrongful death action against Professional and Pulliam to recover damages for the pecuniary loss suffered by the decedent's widow and next of kin by the wrongful death of decedent. Prior to the first trial of this cause, plaintiff had received as a settlement on a covenant not to sue, the sum of $23,500 from Bonita Kirchner. At the first trial, plaintiff presented evidence of future lost wages for a 33-year period totaling $336,366. The jury returned a verdict for plaintiff in the amount of $25,000. The trial court after reducing the verdict by the covenant amount of $23,500 entered judgment on the jury's verdict. Post-trial motions were filed by all parties to the action. Defendants requested judgment notwithstanding the verdict and plaintiff requested a new trial on all issues and a new trial on the issue of damages only. Defendants did not request a new trial. The trial court granted plaintiff's motion for a new trial on the issue of damages only and denied defendants' motion. Following the entry of such order granting a new trial for damages only, defendants filed a petition for leave to appeal to the appellate court asserting contentions which are again repeated in the present action as a basis for such petition for leave to appeal and asserted that the order of the trial court granting the new trial on damages only should be reversed. This court denied such petition for leave to appeal.

A second trial was then had on the issue of damages only. The jury returned a verdict of $120,000. After reduction of the verdict by the amount received in settlement from Kirchner, the trial court entered judgment on the jury's verdict in the sum of $96,500. Defendants then filed a post-trial motion requesting a new trial generally and judgment notwithstanding the verdict. Plaintiff filed a motion to strike certain portions of defendants' post-trial motion. The trial court granted plaintiff's motion to strike with respect to defendants' motion for a new trial generally. The trial court thereafter denied the remaining portions of defendants' post-trial motion.

As we have noted, defendants now seek to appeal not only from the order denying the post-trial motion for judgment notwithstanding the verdict, but also from the order striking certain portions of defendant's post-trial motion, and from the order entered by the trial court following the first trial granting plaintiff a new trial on the issue of damages only. During the pendency of this appeal, plaintiff filed a motion to strike (1) that portion of defendants' brief which asserts error in the trial court's order granting a new trial on the issue of damages only on the ground that Supreme Court Rule 306(a) precludes review of the issue at this time, and (2) those portions of defendants' brief which contest the trial court's granting of plaintiff's motion to strike that portion of defendants' post-trial motion requesting a new trial generally and which further requests this court to grant defendants a new trial on all issues, on the ground that relief sought is no longer available to defendants and that defendants failed to assert such issues in their post-trial motion. Plaintiff's motion to strike portions of defendants' brief was taken with the case in our court for consideration and disposition of the appeal.

As a preliminary matter, we must consider the effect of Supreme Court Rule 306(a) on the issue raised in this appeal. Rule 306(a) provides, in part:

"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. 1971, ch. 110A, par. 306(a)(1).)

In considering the application of Rule 306(a), the appellate court in Hamas v. Payne (2d Dist. 1969), 107 Ill. App.2d 316, 325, stated:

"Illinois reviewing courts have dismissed attempted direct appeals from orders vacating judgments and granting new trials and have held that provisions of the Leave-to-Appeal Statute had to be followed. Where a rule or statute expressly outlines the procedure to be taken on appeal, said procedure must be followed exactly. In this case, defendant failed to follow the prescribed procedures with regard to that portion of the trial judge's order granting a new trial on the issue of damages only and, therefore, that assignment of error should not be considered by this court. Rodriguez v. Chicago Transit Authority, 58 Ill. App.2d 150, 162-163, 206 N.E.2d 828 (1965)."

The Hamas court, however, proceeded to consider defendant's allegations of error in the granting of a new trial on the issue of damages only, and found such contentions to be groundless.

• 1 A more strict application of Rule 306 is found in Martino v. Barra (1st Dist. 1973), 10 Ill. App.3d 97, 293 N.E.2d 745. After the court had quoted the language of Rule 306(a)(1), the court in Martino held, at page 100:

"* * * 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.

"[Counterdefendant'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 on 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."

In the instant case, the defendants filed a petition for leave to appeal from the trial court's order granting a new trial on the issue of damages only in January 1975. That petition of defendants' was denied by this court. This court would thus be fully authorized, on the basis of Rule 306, in refusing to hear the defendants' allegations of error concerning the issue of granting a new trial on damages only. As the Hamas court did, however, we shall discuss the substantive merit of defendants' argument on this point.

The Illinois Supreme Court first recognized the authority of Illinois courts to grant new trials on the issue of damages only in the case of Paul Harris Furniture Co. v. Morse (1956), 10 Ill.2d 28, 139 ...


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