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01/19/88 William J. Carter, As Adm v. Chicago & Illinois Midland

January 19, 1988

WILLIAM J. CARTER, AS ADM'R, APPELLEE

v.

CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, APPELLANT



SUPREME COURT OF ILLINOIS

518 N.E.2d 1031, 119 Ill. 2d 296, 116 Ill. Dec. 210 1988.IL.43

Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Menard County, the Hon. Lyle E. Lipe and Hon. Robert L. Welch, Judges, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Beverly Carter, while driving a van, was involved in an accident with a Chicago & Illinois Midland Railway Company train in Menard County, Illinois, on October 9, 1981. The accident resulted in the death of Beverly Carter and her infant daughter, Tiffany. William J. Carter, husband of Beverly and father of Tiffany, brought suit in his representative capacity against the railroad on behalf of the estate of Beverly and on behalf of the estate of Tiffany, seeking damages for the wrongful death of his wife and of his daughter. The jury returned a verdict in favor of plaintiff of $120,000 for the death of his wife, Beverly, and $5,000 for the death of his daughter, Tiffany. The verdict for the estate of the wife was reduced by 90% under comparative negligence principles, the jury having determined that Beverly was 90% negligent. The trial court found that the verdict for damages for the death of the infant daughter, Tiffany, was inadequate and granted a new trial for damages only as to the claim for her wrongful death.

Plaintiff appealed from the judgment entered on the verdict as to the claim for wife Beverly's wrongful death. The appeal was dismissed by the appellate court because of the failure of the trial court to make the required finding under our Rule 304(a) (107 Ill. 2d R. 304(a) (judgment as to fewer than all parties or claims)). Thereafter, the plaintiff secured the necessary finding by the trial court required by Rule 304(a), that is, there was no just reason for delaying enforcement or appeal, and on appeal from the judgment on the verdict for the wrongful death of wife Beverly, the appellate court affirmed. Carter v. Chicago & Illinois Midland Ry. Co. (1985), 130 Ill. App. 3d 431 (Carter I).

Following the granting of a new trial as to damages only in the claim for the wrongful death of daughter Tiffany, the defendant petitioned the appellate court for leave to appeal under Rule 306 (107 Ill. 2d R. (appeals from orders granting new trial)). This petition for leave to appeal was denied. The defendant thereafter filed a counterclaim against wife Beverly's estate in the case for damages only then pending in the trial court, involving the claim for Tiffany's wrongful death. The counterclaim was for contribution based on the jury's finding that Beverly was 90% comparatively negligent. On motion of the plaintiff and over the objection of the defendant, the trial court severed the counterclaim. Tiffany's case was tried and the jury returned a verdict of $200,000 in favor of her estate and against the defendant railroad. Following the denial of a post-trial motion, the defendant requested a special finding under Rule 304(a) (107 Ill. 2d R. 304(a) (judgment as to fewer than all parties or claims)). The trial court made the Rule 304(a) finding (there is no just reason for delaying enforcement or appeal). Later that same day, on the motion of the plaintiff, the trial court dismissed the defendant's counterclaim. The defendant took separate appeals from the two judgments. The appeal from the judgment in favor of Tiffany's estate was based on the Rule 304(a) findings, because, at the time of its entry, the counterclaim was still pending. The other appeal was taken from the dismissal of the counterclaim. Inasmuch as the dismissal of the counterclaim had terminated the litigation, the appeal from that order was taken under our Rule 303 (107 Ill. 2d R. 303) (appeals from final judgments of the circuit court in civil cases). The time sequence of these events became important. The post-trial motion as to the judgment in favor of Tiffany's estate was denied on February 14, 1985. The special finding under Rule 304(a) as to that claim was entered March 28, 1985. The appeal was taken under Rule 304(a) from the judgment in favor of Tiffany's estate within 30 days after the Rule 304(a) finding, but more than 30 days after the denial of defendant's post-trial motion.

The two appeals were at first consolidated in the appellate court, and later, the appellate court severed the two appeals to await the decision by this court in Northtown Warehouse & Transportation Co. v. Transamerica Insurance Co. (1986), 111 Ill. 2d 532. Plaintiff argued in the appellate court and argues in this court that the appeal from the judgment in favor of Tiffany's estate should have been filed within 30 days from the denial of the defendant's post-trial motion (February 14, 1985), pursuant to Rule 303(a)(1) (107 Ill. 2d R. 303(a)(1), and not 30 days from the entry of the special finding under Rule 304(a) (107 Ill. 2d R. 304(a)). Following the severance in the appellate court, that court considered first the appeal from the order dismissing defendant's counterclaim and affirmed the dismissal (Carter v. Chicago & Illinois Midland Ry. Co. (1986), 140 Ill. App. 3d 25) (Carter II), and this court denied the petition for leave to appeal.

After the counterclaim had been severed from Tiffany's case in the trial court, the new trial in the claim for her wrongful death was held on November 13, 1984. On November 30, 1984, this court filed its opinion in Laue v. Leifheit (1984), 105 Ill. 2d 191, which held that our contribution act (Ill. Rev. Stat. 1981, ch. 70, par. 305) requires that a counterclaim for contribution be filed in a pending action if there is one. After that holding by this court, the plaintiff filed a motion to dismiss the defendant's counterclaim in the trial court. On March 28, 1985, the trial court dismissed the counterclaim, and as noted above, the appellate court affirmed the dismissal and we denied the defendant's petition for leave to appeal.

After this court filed its opinion in Northtown, the appellate court considered the defendant's appeal under Rule 304(a) from the judgment in favor of Tiffany's estate, which, as noted, had been severed from the appeal involving the dismissal of the counterclaim. The appellate court found that Northtown was controlling and that the appellate court was without jurisdiction because the appeal should have been taken within 30 days after the denial of the post-trial motion under Rule 303 and that Rule 304(a) did not apply (Carter v. Chicago & Illinois Midland Ry. Co. (1986), 144 Ill. App. 3d 437) (Carter III). This court granted the defendant's petition for leave to appeal. In spite of the rather complicated proceedings that have transpired in this case, the sole issue before us in this appeal is the propriety of the appellate court's application of Northtown to this case.

In Northtown this court held that a counterclaim for indemnity severed in the trial court created a separate and distinct claim from that of the plaintiff. We held that a plaintiff's claim, when severed, should be treated as a separate action. As such, an appeal should be allowed from the final judgment in the severed action without the finding required by Rule 304(a) just as if the case had proceeded as a single-claim action from the beginning. (Northtown, 111 Ill. 2d at 537.) In Northtown, the appellate court had dismissed the appeal because there had been no finding under Rule 304(a). We reversed, holding that the Rule 304(a) finding was not necessary. In the case before us, unlike in Northtown, there had been a Rule 304(a) finding, but the appellate court dismissed the appeal because the notice of appeal was not filed within the time required by Rule 303(a). Although Northtown did not specifically so hold, the appellate court reasoned that Northtown required that the appeal be taken within the time required in Rule 303(a) and not the time specified in Rule 304(a).

Prior to 1956 in Illinois, a judgment finally determining the rights of fewer than all the parties, or fewer than all the claims, was appealable and had to be appealed if the rights of the parties against whom the judgment had been entered were to be preserved. This practice resulted in piecemeal appeals. Also, there was great uncertainty as to whether an order was a final and appealable order and a party, at his peril, would make the determination not to appeal. (See Ill. Ann. Stat., ch. 110A, par. 304, Historical & Practice Notes, at 158 (Smith-Hurd 1985).) In 1955, our Civil Practice Act was amended effective January 1, 1956, and section 50(2) was added (Ill. ...


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