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Robbins v. Professional Construction Co.

OPINION FILED MAY 26, 1978.

NANCY CAROL ROBBINS, ADM'X, APPELLEE,

v.

THE PROFESSIONAL CONSTRUCTION CO. ET AL., APPELLANTS.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Kankakee County, the Hon. Wayne P. Dyer, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Plaintiff, Nancy Carol Robbins, as administratrix of the estate of the decedent, Alfred Lee Robbins, brought this wrongful death action in the circuit court of Kankakee County to recover damages for pecuniary injuries suffered by decedent's widow and next of kin. See Ill. Rev. Stat. 1971, ch. 70, par. 2.

This action arose from a fatal automobile accident which occurred on the morning of September 8, 1971, at the intersection of Route 17 and Warner Bridge Road, just west of the city of Kankakee. At approximately 7:20 a.m. Bonita Kirchener was driving her automobile westbound on Route 17, just east of the Warner Bridge Road intersection. The weather was clear and the pavement dry. As she approached the intersection she applied her brakes and her vehicle skidded into the eastbound lane of traffic, where her vehicle collided with a truck driven by defendant Harold Pulliam and owned by Pulliam's employer, defendant Professional Construction Company. Skid marks from the truck at the scene of this collision were 89 feet long; another set of skid marks, presumably from the Kirchener vehicle, was 29 feet long. The speed of each vehicle at the time of this first collision, however, is not readily ascertainable from the record.

The impact of the first collision tilted the truck to the right, causing the wheels on the left side of the truck temporarily to lose contact with the road. The truck then swerved right, proceeding at least partially along the shoulder for approximately 50 feet, veered sharply back to the left, across the eastbound lane of traffic and into the westbound traffic, where it collided with the oncoming car driven by the decedent. There was testimony tending to establish that, at the point of impact, the truck was traveling between 40 and 60 miles per hour and that decedent's car was traveling at between 20 and 25 miles per hour, as he tried to pull off the road to avoid the collision. Examination of the truck after the accident revealed part of its steering mechanism to be broken, though precisely how and when it broke remains unknown.

In a partial pretrial settlement, Kirchener paid plaintiff $23,500 in return for a covenant not to sue. At trial, in addition to the aforementioned evidence regarding the occurrence, evidence was introduced regarding decedent's putative future earnings. That evidence indicated that decedent's employment had not been continuous over the last several years, but other evidence indicated that decedent's potential future contributions to his family would have been at least $3,000 per year (over his expected working life of 33 years).

The jury returned a verdict for plaintiff and against defendants in the amount of $25,000, which the court reduced by $23,500 to reflect the amount already received by plaintiff in the pretrial settlement with Kirchener, a potential defendant. (The propriety of this reduction is not at issue.) Defendants filed a post-trial motion requesting judgment notwithstanding the verdict, but did not alternatively request a new trial if their motion for judgment notwithstanding the verdict were denied. Plaintiff moved to set aside this verdict in favor of a new trial on the question of damages only, on the grounds that the damages were inadequate. Alternatively plaintiff requested a new trial on all issues. The court denied defendants' motion, granted plaintiff's motion for a damages trial, and conditionally granted plaintiff's motion for a new trial on all issues in the event that the order granting a new trial limited to damages was reversed, set aside, or vacated. See Ill. Rev. Stat. 1971, ch. 110, par. 68.1(6).

Defendants sought to appeal the trial court's actions. However, defendants neither filed a record in the appellate court nor moved for an extension of time in which to file the record, until after the time provided for such motions by Rule 306(e) had expired. In addition, defendants failed to accompany their motion for an extension with a short record. (See 58 Ill.2d Rules 306(e), 328.) While this motion was pending, the appellate court dismissed the appeal.

In the ensuing damages trial the jury returned a verdict for plaintiff and against defendants in the amount of $120,000. The circuit court entered judgment on this verdict after reducing it by $23,500 to reflect the aforementioned pretrial settlement. The defendants then filed a post-trial motion requesting, inter alia, a new trial on all issues, including the issue of liability. The court denied the motion, and on appeal, the Appellate Court, Third District, affirmed, with one judge dissenting. (45 Ill. App.3d 524.) The appellate court's holdings were as follows: (1) The earlier "denial" of defendants' "petition for leave to appeal" authorized the appellate court to refuse to address the merits of the order granting plaintiff a new trial on the question of damages. Alternatively, the court would uphold that order on the merits. (2) Defendants waived their right to request a new trial on the question of liability by failing to request such relief either after the first trial or within 30 days of the trial court's order granting plaintiff a new trial on the question of damages. Alternatively, even if the defendants had not waived the issue, they were not entitled to a new trial on the question of liability. (3) Defendants were not entitled to judgment notwithstanding the verdict. (Defendants apparently do not contest this holding.)

Defendants seek reversal of the appellate court's judgment on the following grounds: (1) The appellate court's "denial" of defendants' earlier petition for leave to appeal the trial court's order granting plaintiff a damages trial did not foreclose the appellate court's review of that order on appeal following the damages trial. (2) The trial court improperly awarded plaintiff a damages trial. (3) Defendants did not waive their right to request a new trial on the question of liability. (4) Defendants were entitled to a new trial on all questions, including liability. We disagree with defendants' contentions (1) and (3), and therefore need not address the merits of points (2) and (4).

Rule 306 governs appeals from orders of the circuit court granting a new trial limited to the question of damages. It provides in part as follows:

"Rule 306. Appeals From Orders of the Circuit Court Granting New Trials

(a) Procedure.

(1) Petition for Leave to Appeal. 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. The petition shall contain a statement of the facts of the case, supported by references to the record, and of the grounds for the appeal. It shall be duplicated, served, and filed in the ...


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