APPEAL from the Circuit Court of Henderson County; the Hon.
SCOTT I. KLUKOS, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 18, 1979.
The defendant Meeker appeals from a judgment returned against him and an award of damages to the plaintiffs Roth and Miller after trial by jury in the circuit court of Henderson County.
The plaintiffs Roth and Miller filed an eight-count complaint against the defendant Meeker, the crux of which alleged that they had been damaged in their cattle-breeding operation as the result of Meeker's refusal to vacate possession of certain premises being leased by the plaintiffs, and further by his intermingling of his livestock with that of the plaintiffs and further by his commission of other acts to the detriment of the operation of the plaintiffs Roth and Miller, which was the breeding of Angus cattle.
A lengthy trial ensued between the parties and a great portion of the testimony adduced was conflicting. There is, however, no conflict as to the fact that the defendant Meeker consummated a sale of his farm in Henderson County to a Mr. Mackey on April 9, 1976. The sale was effectuated by an agreement for deed entered into between Meeker and Mackey and provided for the sale of 364 acres, possession to vest in the purchaser Mackey as of the date of the contract, April 9, 1976, with the exception of the dwelling house located on the farm, possession of which was to be retained by Meeker until October 1, 1976.
On April 10, 1976, the plaintiffs Roth and Miller entered into a lease with Mackey for a portion of the farm for the use of the same in their joint venture of breeding livestock. On the same day the plaintiffs purchased cows from the defendant at an auction sale which was held on the real estate which Meeker had agreed to sell to Mackey. Shortly after the purchase of the livestock by the plaintiffs they released the same plus additional livestock on the premises which they had orally leased from Mackey.
As we have previously stated, the trial between the parties was lengthy and from an examination of the record it is abundantly clear that it was hotly contested and could well be referred to as the Battle of Bull Run of Henderson County. Governor Ford in his memoirs relates that the enactment of the "Little Bull Law" by our legislature in 1832 inflamed and aroused the anger of our pioneer forefathers. While we will not attribute anger to the participants and their counsel in this case, it is nevertheless evident that a spirited contest took place during the trial of this case. The jury heard conflicting evidence as to commingling of livestock which allegedly resulted in offspring which could not be registered as purebreds; they heard evidence of alleged acts of the defendant which interrupted the plaintiffs' artificial insemination program; also evidence as to the cause of a disease commonly known as pinkeye which was contracted by the animals, as well as evidence to the effect that the defendant Meeker refused to deliver registration papers for a portion of the cattle sold by him to the plaintiffs which prevented the latter from registering certain cows and calfs with the American Angus Association. After hearing the evidence the jury returned a verdict in favor of the plaintiffs in the sum of $46,800.
We will set forth a more detailed recitation of facts and trial procedures as they become pertinent to a determination of the issues raised in this appeal, and a plethora of issues has been raised by the defendant.
We prefer to first direct our attention to the defendant's contention that an oral instruction by the court to the jury after the return of a verdict, which was to the effect that the jury again retire and adjust its verdict, is improper and constitutes reversible error. In addressing ourselves to this contention it is necessary that we set forth the sequence of events which formed the basis for the trial court's action. As previously noted, the plaintiffs' complaint contained eight counts, some but not all of which would support an award of punitive damages. After the jury had retired and deliberated for approximately four hours the court, after being so requested by the jury, gave written instructions to the jury in response to its written inquiry concerning an award of punitive damages. The court's instruction was identified as instruction #10 and was given in the presence of counsel for all parties. The defendant objected to this instruction, which was as follows:
"The jury is hereby instructed that you may, if you so desire or if you want to, on the basis of the law and the evidence in the Court's verdict instruction, award to the plaintiffs, in addition to any other damages, you may have awarded, an award of punitive damages if:
1) You find that defendant was guilty of wilful and wanton conduct which proximately caused damage to the plaintiffs, and
2) if you find both plaintiffs free from contributory wilful and wanton conduct, and
3) if you believe that justice and the public good requires it.
You are hereby further instructed that punitive action can be taken if the defendant is guilty of wilful and wanton conduct on any count or counts and both plaintiffs are free from contributory wilful and wanton conduct on that particular count or counts.
You are hereby further instructed that if you find the defendant guilty of wilful and wanton conduct, under the law and the evidence, that you write on that verdict form as follows:
`We, the jury, find the defendant guilty of wilful and wanton conduct on the following counts. ____________________________________________ ____________________________________________ ____________________________________________ ____________________________________________ and place the count numbers in the blanks.'"
1 The defendant's objection to this instruction was predicated upon several grounds. First he argues that the use of the words "if you desire or if you want to" leaves the matter of assessing punitive damages entirely to the whim of the jury. We disagree, since the complained of words "if you so desire or if you want to" are modified and limited by the words "on the basis of the law and the evidence." It is clear that the jury could assess punitive damages if it wanted to only if such assessment had a basis in the law and was supported by the evidence.
2 The defendant further predicated his objection on the grounds that both plaintiffs should be free from contributory, wilful and wanton conduct both "before and at the time of the occurrence." We find no merit in this argument, since when read in conjunction with other instructions the jury could only be well aware of the time period when the conduct of the parties was to be considered. Assistance to jurors is commendable; however, giving instructions which contain language which could only be considered elementary is an affront to their intelligence.
3 Lastly the defendant's objection to instruction #10 was that the award of punitive damages could well be granted on any count in the complaint, while only counts II and VIII would support such an award. There is merit to this contention since such did occur; however, this matter was corrected by the trial court and in fact in the final verdict no award of punitive damages was made, so this contention of the defendant became moot.
Subsequent to the jury receiving instruction #10 further written inquiries and responses ensued between the court and jury. It should be noted that at all times counsel for the plaintiffs and defendant were present, a requirement recommended by Hunter v. Smallwood (1975), 28 Ill. App.3d 386, 328 N.E.2d 344.
After deliberating approximately seven hours the jury returned to open court with the announcement that it had reached a verdict. The jury's verdict showed that the defendant had been found guilty of wilful and wanton misconduct on counts I, III and VI. Before the jury could be polled the court indicated that it was going to instruct the jury that counts I, III and VI would not support a punitive damage award and that if the damages awarded on these counts were punitive the jury would be advised to eliminate them. The defendant moved for a mistrial which was denied. The following colloquy then took place instituted by the trial judge:
"We have a problem on the verdicts, and I think that they may be inconsistent, and it is probably due to the alter instructions, my misunderstanding of probably what you wanted, and so on, but on this instruction which I sent out to you later, I want to call to your attention that counts I, III and VI are not punitive damage counts, so if there are any punitive damages if you have awarded any punitive damages in counts I, III, and VI, I am going to ask you to ...