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Thatch v. Missouri Pacific R.r. Co.

OPINION FILED MARCH 13, 1979.

WILLIAM THATCH, PLAINTIFF-APPELLEE,

v.

MISSOURI PACIFIC RAILROAD COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant Missouri Pacific Railroad Company appeals from the order of the Circuit Court of St. Clair County fixing June 7, 1974, the date of plaintiff's initial judgment, as the date from which interest on a judgment accrues pursuant to section 3 of the Interest Act (Ill. Rev. Stat. 1973, ch. 74, par. 3).

• 1 Plaintiff William Thatch initially brought suit under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) to recover damages for injuries sustained while working for defendant railroad. At the close of the trial the court refused to submit the issue of plaintiff's contributory negligence to the jury. In cases arising under the F.E.L.A., plaintiff's contributory negligence would not bar recovery, but would reduce his damages in proportion to the amount of negligence attributable to him. Thereafter, the jury returned a verdict in favor of plaintiff in the amount of $249,200 upon which verdict judgment was entered on June 7, 1974.

Defendant appealed and in Thatch v. Missouri Pacific R.R. Co., 47 Ill. App.3d 980, 362 N.E.2d 1064 (5th Dist. 1977), we held that the issue of plaintiff's contributory negligence was for the jury to decide and ordered a new trial limited to determining the amount by which damages should be reduced considering the evidence of plaintiff's contributory negligence. We concluded:

"The case is therefore remanded to the trial court of St. Clair County with directions to enter judgment for the plaintiff on the issue of liability, and a new trial is ordered limited to the issue of damages in accordance with this opinion.

Reversed and remanded with directions."

In denying plaintiff's petition for rehearing, we filed a supplemental opinion and clarified the issues to be resolved on retrial. We suggested that the trial court have the jury decide what percentage of the total combined negligence of both parties consisted of plaintiff's negligence and then reduce plaintiff's damages of $249,200 by this percentage. We remanded for proceedings consistent with the views expressed in the opinion. Our mandate, filed November 1, 1977, was entitled "REVERSED ORDER" and likewise reflected that this cause was remanded to the Circuit Court of St. Clair County.

Pursuant to the directions in these two opinions, a new trial was held on the issue of damages. The jury returned a verdict in favor of plaintiff in the amount of $236,740 upon which verdict judgment was entered on February 22, 1978. On March 21, 1978, plaintiff filed a motion to fix interest contending that the interest on the judgment accrued from June 7, 1974. In granting interest on the sum of $236,740 from this date, the trial court stated:

"If the judgment debtor retains the use of the money prior to the satisfaction of the judgment, the judgment creditor deserves interest as payment for that use. The cost of the loss of the use of the money should be borne by the defendant whose initial wrongful conduct invoked the judicial process and who had the use of the money judgment through the period of delay."

The only issue on appeal is whether the interest on the new award of $236,740 should be computed from June 7, 1974, the date of the original judgment, or February 22, 1978. The applicable statutory provision permitting interest to accrue on the judgment in this action is section 3 of the Interest Act (Ill. Rev. Stat. 1973, ch. 74, par. 3). It provides:

"Judgments recovered before any court or magistrate shall draw interest at the rate of 6% per annum from the date of the same until satisfied. When judgment is entered upon any award, report or verdict, interest shall be computed at the rate aforesaid, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment. However, that the judgment debtor may by tender of payment of judgment, costs and interest accrued to date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of appeal, writ of error, or other steps to reverse, vacate or modify the judgment."

Defendant railroad argues that it was error for the trial court to award interest on a judgment that has been reversed and nullified. It further argues that it was impossible to tender full payment of judgment, interest and costs to prevent further accrual of interest as the amount of damages was not ascertainable until the retrial in 1978.

Plaintiff, however, contends that our initial opinion did not reverse the 1974 judgment but simply remanded the case for modification of the damage award. Plaintiff claims that defendant ignores the language of the supplemental opinion and mandate which specified a remandment and not a reversal. In addition, he argues that defendant could easily have stopped the running of interest by tendering the full amount of the original judgment.

The problem of determining when interest accrues on a judgment in a case which encompasses numerous appeals has plagued the courts for many years. (See cases collected in Annot., 4 A.L.R. 3d 1221 (1965).) The solution to this problem, compounded in recent years as litigation becomes more complex and prolonged, cannot be found in the applicable statutory language. Section 3 of the Interest Act simply provides that interest on a judgment accrues from the date of that judgment. While there is no difficulty determining the date from which interest runs on a judgment that has been affirmed in an appellate court or has not been appealed, the problem arises in delineating the specific date of a judgment for purposes of the statute when the judgment has been partially or totally set aside and modified on appeal, or remanded for further ...


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