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Knapp v. Hertz Corp.

OPINION FILED APRIL 11, 1978.

WILLIAM B. KNAPP ET AL., PLAINTIFFS-APPELLEES,

v.

THE HERTZ CORPORATION, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM V. DALY and the Hon. JAMES A. GEROULIS, Judges, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 12, 1978.

Defendant, the Hertz Corporation, appeals from four orders of the circuit court in this product liability case. The first, entered on January 19, 1973, vacated a jury verdict in favor of the defendants, set aside the judgment entered thereon, and granted a new trial to plaintiffs, William and Jeannette Knapp, on all issues. The court's amended order, entered on January 29, 1973, vacated the jury's verdict and the judgment entered thereon, granted plaintiffs' motion for a directed verdict (Ill. Rev. Stat. 1977, ch. 110, par. 68.1) made at the close of the evidence, and granted plaintiffs a new trial limited to the issue of damages. A second amended judgment order was entered on February 14, 1974. This order entered judgment for the plaintiffs notwithstanding the verdict, and ordered a new trial limited to the issue of damages. Defendant also appeals from an order of the circuit court entered on July 7, 1976, following the jury trial on the issue of damages. This order entered judgment on the jury's verdict in favor of plaintiffs, awarding damages to plaintiff Jeannette Knapp in the amount of $1,000 and to plaintiff William Knapp in the amount of $55,000.

The issue on appeal is whether the trial court properly vacated the jury verdict under the standards set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. Although defendant challenged the amount of the damages awarded by the jury in its notice of appeal filed on August 5, 1976, no arguments on this issue have been briefed or argued before this court. We therefore consider Hertz to have waived this issue. Supreme Court Rule 341(e)(7), Ill. Rev. Stat. 1977, ch. 110A, par. 341(e)(7).

Plaintiffs have filed a motion to dismiss this appeal, which was taken with the case. On the motion, the issue is the res judicata effect, if any, of two prior appeals in this case by Hertz.

Plaintiffs, who reside in Chicago, rented a 1963 Ford station wagon from defendant, an automobile rental company, on June 11, 1963. The next day, plaintiffs and their children departed in the rented station wagon for a vacation trip to Atlantic City, New Jersey. On the afternoon of June 13, they were driving eastbound on the Pennsylvania Turnpike near Valley Forge, Pennsylvania. They stopped for gasoline, after which Mrs. Knapp took the wheel. Mrs. Knapp testified that she released the emergency brake at the gas station prior to setting the car in motion. Approximately one hour later and one-quarter mile before they reached a highway toll plaza, Mrs. Knapp attempted to apply the brakes to bring the car to a stop. The brake pedal went all the way to the floor, and the car failed to slow. She then attempted to apply the emergency brake, but it too failed. The car ran into a concrete abutment at the toll plaza, causing the plaintiffs to be injured.

Plaintiffs then commenced this action. The case was tried in 1969, but for reasons not evident from the record now before us, the trial was not completed. Plaintiffs' fourth amended complaint, filed February 2, 1971, alleged that the braking system on the station wagon was in an unreasonably dangerous condition in that it failed to perform as intended. At the second trial in 1971, from which this appeal in part arises, plaintiffs presented evidence of the foregoing facts. They presented no expert testimony as to the exact cause of the brake failure.

Defendant presented evidence to establish that the brake failure was the result of Mrs. Knapp operating the car with the emergency brake in a partially applied position.

At the close of all the evidence, both sides moved for a directed verdict. Both motions were denied, and the case was submitted to the jury. The jury returned its verdict in favor of the defendant.

In their amended post-trial motion, plaintiffs asked the court to set aside the jury verdict, to grant their motion for a directed verdict made at the close of the evidence, and for a new trial on the issue of damages. In the alternative, the motion asked that the verdict be set aside, the judgment entered thereon vacated, and for a new trial on all issues. The motion was supported by in excess of 50 alleged trial errors. The trial court then entered the series of orders related above.

Following entry of the trial court's amended judgment order on January 29, 1973, defendant filed an appeal under Supreme Court Rule 306 ("Appeals from Orders of the Circuit Court Granting New Trials," Ill. Rev. Stat. 1971, ch. 110A, par. 306). The appeal was docketed in this court as number 58656, and was assigned to this court's fifth division. On August 24, 1974, the appeal was dismissed for want of prosecution.

Following the entry of the trial court's amended judgment order on February 14, 1974, defendant again sought an appeal. This appeal was docketed in this court as number 60180. On July 23, 1974, the fifth division denied defendant's petition for leave to appeal and remanded the case for the trial on the issue of damages. The draft order entered by this court stated that the denial of the petition was "without prejudice to the right of Defendant to appeal all prior and future orders in the cause."

Following a jury trial held on the issue of damages, a final judgment in the case was entered on July 7, 1976. Defendant's notice of ...


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