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Struthers v. Jack Baulos

OPINION FILED SEPTEMBER 30, 1977.

THOMAS C. STRUTHERS, PLAINTIFF-APPELLEE,

v.

JACK BAULOS, INC., ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, Thomas C. Struthers, brought this action against defendants, Jack Baulos, Inc., a corporation, and Todd J. Hausler, for personal injuries and property damage sustained in a collision between plaintiff's automobile and a semi-trailer truck owned by the defendant corporation and under the control of its employee, defendant Hausler.

The jury returned a general verdict in favor of plaintiff for $20,000 and responded to a special interrogatory in a manner first ruled by the trial court as inconsistent with the general verdict. The court entered judgment in favor of defendants on the special verdict but, after hearing plaintiff's post-trial motion, it vacated that judgment and entered judgment on the general verdict in favor of plaintiff from which defendants appeal.

The special interrogatory submitted by the defendants and answered "no" by the jury stated:

"Was the Plaintiff in the exercise of due care and caution for his own safety and the safety of his property at and immediately preceeding [sic] the occurrence in question?"

Defendants contend first that plaintiff waived all right to object to the form of the special interrogatory by failure to make a specific objection at the conference on instructions and that the trial court, then, had no power to consider an objection raised for the first time in plaintiff's post-trial motion. At the conference on instructions, plaintiff's counsel made a general objection "for the record" to the interrogatory submitted by defendants, but apparently did not notice it referred to a duty of the plaintiff to exercise "due care and caution" rather than "ordinary care", as defined in the instructions to the jury, or that the interrogatory form was not qualified by reference to conduct of plaintiff which proximately contributed to cause plaintiff's injuries. No objection directed to these deficiencies was made at the conference and they were raised for the first time in plaintiff's post-trial motion.

Defendants rely upon section 65 of the Civil Practice Act which provides:

"Unless the nature of the case requires otherwise, the jury shall render a general verdict. The jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. Special interrogatories shall be tendered, objected to, ruled upon and submitted to the jury as in the case of instructions. Submitting or refusing to submit a question of fact to the jury may be reviewed on appeal, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly." (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 110, par. 65.)

This court has recently held:

"The rule in Illinois is that objections to instructions offered by an opposing party must be made at the conference on instructions and must be specific or they are waived on appeal [citations]. Further, the failure to object specifically at the conference cannot be cured by making the proper objection for the first time in the post-trial motion [citations] because the trial court would otherwise be deprived of an opportunity to correct the defective instruction * * *. [Citation.]" Dean v. Keith's and Ralph's Tavern, Inc. (1975), 25 Ill. App.3d 970, 972, 324 N.E.2d 7, 9. See also Delany v. Badame (1971), 49 Ill.2d 168, 178, 274 N.E.2d 353, 358; Wolfe v. Bertrand Bowling Lanes, Inc. (1976), 39 Ill. App.3d 919, 928, 351 N.E.2d 313, 320; Johnston v. Basic (1973), 16 Ill. App.3d 453, 457, 306 N.E.2d 610, 613.

• 1 It has also been held that the same rule pertains, and for the same reasons, requiring a specific objection at the conference on instructions to a tendered special interrogatory. (Sellers v. Hendrickson (1977), 46 Ill. App.3d 549, 558, 360 N.E.2d 1235, 1242; Havlovic v. Scilingo (1972), 7 Ill. App.3d 918, 922, 289 N.E.2d 79, 82; see also Larson v. Thomashow (1974), 17 Ill. App.3d 208, 217, 307 N.E.2d 707, 715.) The special interrogatory submitted by defendants here was defective in that it did not reach an ultimate issue in the case and referred to a "due care and caution" concept rather than "ordinary care" as defined in the instructions to the jury. It clearly would have been refused by the trial court if objected to on those grounds at the conference. (Eichorn v. Olson (1975), 32 Ill. App.3d 587, 594, 335 N.E.2d 774, 779; Bruske v. Arnold (1969), 44 Ill.2d 132, 136, 254 N.E.2d 453, 456, cert. denied (1970), 398 U.S. 905, 26 L.Ed.2d 65, 90 S.Ct. 1697.) The general objection "for the record" made by plaintiff did not sufficiently describe any deficiency so as to allow the court to make a considered ruling on the interrogatory or to allow defendants to tender a correction if they chose to do so. Plaintiff, therefore, was foreclosed from raising such claim of error for the first time by his post-trial motion.

• 2 Contrary to defendants' further contention, although plaintiff was barred, neither the trial court nor a reviewing court is bound by the failure of a party to specifically challenge a special interrogatory and the trial court could properly consider the issue as raised in plaintiff's post-trial motion for the first time if it considered that necessary in the interest of justice. (Wozniak v. Segal (1974), 56 Ill.2d 457, 461, 308 N.E.2d 611, 612; Fopay v. Noveroske (1975), 31 Ill. App.3d 182, 189, 334 N.E.2d 79, 86.) In this case, however, the issues raised by the special interrogatory and the jury's response to it may be resolved on a more direct basis.

Defendants also contend that the answer to the special interrogatory was inconsistent with the general verdict and, therefore, the trial court was required to render judgment for defendants on the special verdict (Ill. Rev. Stat. 1975, ch. 110, par. 65) arguing that by its special verdict the jury found plaintiff to be guilty of contributory negligence barring his recovery. The jury returned a general verdict finding the issues as defined by the instructions in favor of plaintiff and assessed damages. It also made the limited special finding by its answer to the interrogatory that plaintiff was not exercising "due care and caution" for his own safety at the time of the occurrence. The trial court initially entered judgment for defendant on that special verdict, apparently then believing it was inconsistent with and therefore controlled the general verdict. Subsequently, the trial court determined the general and special verdicts were not inconsistent, vacated its earlier order and entered judgment on the general verdict from which order defendants now appeal.

• 3, 4 While plaintiff was bound by the answer to the interrogatory because he failed to specifically challenge it at the conference on instructions, he can be bound only as to those issues actually decided by the jury's special verdict. Contributory negligence barring recovery by plaintiff requires findings that plaintiff's conduct was negligent and that the negligence proximately caused plaintiff's injuries. (Spiron v. Spiron (1974), 21 Ill. App.3d 610, 615, 316 N.E.2d 265, 268.) This special interrogatory did not address itself to the element of proximate cause; therefore, the special verdict based on it could not determine that plaintiff was guilty of contributory negligence and thus be inconsistent with and control the general verdict returned in favor of plaintiff. Barbour v. Chicago Transit Authority (1976), 41 Ill. App.3d ...


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