Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Patur v. Aetna Life & Casualty

OPINION FILED NOVEMBER 7, 1980.

BLAIR PATUR, PLAINTIFF-APPELLANT,

v.

AETNA LIFE & CASUALTY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. O'BRIEN, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal arises out of plaintiff's action to recover compensation allegedly due him upon his termination from employment with defendant, Aetna Life & Casualty. After a trial on the merits, the jury returned a verdict in favor of defendant. Plaintiff requests this court to vacate the judgment and remand the cause for a new trial, contending that: (1) the trial court committed reversible error by submitting the wrong special interrogatory form to the jury, (2) the court further erred by not requiring the jury to answer the special interrogatory, and (3) defense counsel's closing argument was so prejudicial as to deprive plaintiff of a fair trial. We affirm the trial court's judgment.

The merits of plaintiff's action are not at issue. Rather, plaintiff objects to alleged procedural irregularities which purportedly deprived him of a fair trial. The underlying facts thus may be stated briefly.

Patur, a certified life underwriter, began working for defendant on November 1, 1971. He was hired to supervise sales with the insurance brokers and agents to promote Aetna's products. Along with a salary and certain other benefits, he received incentive payments based on the commissions of the brokers he was servicing.

In January of 1972, a new compensation plan was initiated. Patur received a copy of the new plan and was present at the meeting in which the payment plan was discussed. The plan document contained the statement that "incentive payments will not be vested, but in the event of termination, will be paid only for the period of time that the base salary and temporary support is paid." Testimony at the trial revealed that these incentive payments, amounting to 30% of the brokers' commissions, were not tantamount to commissions in themselves, but merely a device the company used to determine what a particular supervisor would be paid for future time periods.

In a letter dated March 17, 1975, plaintiff submitted his resignation, effective April 1, 1975. Plaintiff claimed a right to $14,300, based on the incentive payment percentage. He was informed that he was not entitled to this amount, and thereafter brought suit to recover it.

At the close of all the evidence, plaintiff submitted a special interrogatory to be given to the jury. The form provided:

"The Jury will answer the following special interrogatory by writing in the blank space the word `yes' of `no' as the Jury may find from the evidence.

Was the failure of the Defendant to make payment to plaintiff as charged in the Complaint a wilful and arbitrary refusal?"

The parties agreed to substitute the words "unreasonable and vexatious" for "wilful and arbitrary." The interrogatory as revised was then read to the jury. However, it was later discovered that the jury had been given the original version in written form.

The jury returned its verdict in favor of defendant but failed to answer the special interrogatory. Subsequently, the trial court denied plaintiff's post-trial motion for judgment notwithstanding the verdict, or for a new trial.

OPINION

• 1 Plaintiff first contends that the trial court committed reversible error by submitting the wrong version of the special interrogatory. We disagree. Initially, we note that plaintiff raises this issue for the first time on appeal. He did not include this objection in the post-trial motion as required by section 68.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2)). That section provides, in relevant part, that "[t]he post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof * * *." A reason behind this rule is to provide the trial judge the opportunity to appraise alleged errors in considering the need for a new trial. (Keene v. City of Chicago (1974), 17 Ill. App.3d 464, 308 N.E.2d 244.) Accordingly, the appellate court will not generally review objections not properly preserved in the post-trial motion. Supreme Court Rule 366(b)(2)(iii) (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(iii)); see Delany v. Badame (1971), 49 Ill.2d 168, 274 N.E.2d 353.

• 2 In response to the waiver issue, however, plaintiff asserts that "special circumstances" exist. He claims that he did not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.