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04/13/88 Roger Davis Et Al., v. Ional Harvester Company

April 13, 1988





521 N.E.2d 1282, 167 Ill. App. 3d 814, 118 Ill. Dec. 589 1988.IL.526

Appeal from the Circuit Court of Winnebago County; the Hon. Alford R. Penniman, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. WOODWARD and REINHARD, JJ., concur.


Roger Davis was injured when the semitractor he was driving collided with a pickup truck and rolled over. He brought a products liability action against International Harvester Company (Harvester), the manufacturer of the semitractor, alleging that the vehicle's faulty design caused his injuries. Davis' wife, Sharon, also filed a claim against Harvester, for loss of consortium.

Davis' claim alleged that when the pickup truck struck his semitractor, it punched a hole through the tractor's poorly supported left front corner, dislodging a vent box and forcing the vent's sharp edges into Davis' leg. Just prior to trial, Harvester amended its answer to include Davis' execution of a general release as an affirmative defense and then moved for summary judgment based on the release. After a hearing, the trial court denied defendant's motion. A jury subsequently returned a verdict for Harvester.

On appeal, Davis argues that: (1) the trial court erred in denying his motion for a new trial, which was based on his discovery, after trial, that two jurors gave false answers during voir dire; (2) the court erred in excluding evidence that Harvester had subsequently changed its semitractor design; (3) the court erred in directing a verdict for defendant on plaintiff's claim for punitive damages; and (4) numerous other errors prejudiced his case. Harvester filed a cross-appeal in which it alleges that the court erred in denying its motion for summary judgment. We affirm the judgment for defendant.

Although not raised by plaintiffs, we must initially determine whether defendant has standing to cross-appeal. (See, e.g., Boles Trucking, Inc. v. O'Connor (1985), 138 Ill. App. 3d 764, 772.) The denial of a motion for summary judgment is not reviewable on appeal after a trial on the merits, because the ruling merges into the trial that follows. (See Romano v. Bittner (1987), 157 Ill. App. 3d 15, 22; Paulson v. Suson (1981), 97 Ill. App. 3d 326, 328.) The reason for applying the merger doctrine is that the subsequent verdict is necessarily based on a more complete presentation of the evidence than was the motion for summary judgment. (Romano, 157 Ill. App. 3d at 22; Paulson, 97 Ill. App. 3d at 328.) We recognize that Harvester's motion was based on plaintiff's alleged execution of a general release and therefore might more appropriately have been brought as a motion to dismiss plaintiff's complaint. (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(6).) Nevertheless, a party may not appeal from a final judgment which was in no way adverse to him (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 386; Schmitt v. Wright (1943), 317 Ill. App. 384, 404), and an appeal would not lie in any event from the denial of a motion to dismiss. (Boles Trucking, 138 Ill. App. 3d at 772; Paulson, 97 Ill. App. 3d at 328.) While we are free to consider Harvester's arguments as grounds for affirming the trial court's judgment, Harvester clearly lacks standing to appeal. (Boles Trucking, 138 Ill. App. 3d at 772.) We therefore dismiss the cross-appeal. I

Plaintiff's first contention on appeal is that two jurors misrepresented themselves during voir dire and that their presence on the jury was so prejudicial to him as to warrant a new trial. He claims that the trial court erred in denying his motion for a new trial and in refusing to permit him to subpoena jurors for an evidentiary hearing on the issue.

Jurors Dodge and Darnell were among a panel of 12 prospective jurors who were asked by the trial court whether they had ever "been sued or sued anyone." Dodge replied that he had been sued in small claims court regarding some defects in a house he had sold. Another prospective juror replied that her husband had sued someone. The remaining prospective jurors, including Darnell, remained silent. In addition, when questioned individually, Darnell testified that she was married and had been married for 37 years. Plaintiff contends that Dodge failed to reveal his involvement in two other prior lawsuits -- one in which he was sued by an attorney for fees, and one in which he was sued for divorce -- and that Darnell failed to reveal that she had been divorced. Plaintiff raised his objections to Dodge for the first time in a supplement to his post-trial motion nearly two months after the original post-trial motion was filed. He raised his objection to Darnell over three months later, in an additional supplement to his post-trial motion. Harvester contends that plaintiff has waived this issue by failing to investigate diligently the prospective jurors prior to trial, or at least prior to filing his post-trial motion.

In Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136, the supreme court held that a motion for a new trial based on jurors' false testimony during voir dire should be denied unless the movant establishes both that the juror answered falsely and that prejudice resulted. (68 Ill. 2d at 139.) The issue is primarily left to the discretion of the trial court, which is in the better position to observe the juror and his or her demeanor. 68 Ill. 2d at 139.

We conclude that plaintiff has not demonstrated that he was prejudiced by the jurors' omissions. With respect to Darnell, plaintiff's allegations do not establish that she lied. She was not asked whether she had ever been divorced, and the fact that she had been divorced does not establish that she was not then married or that she had not been married for 37 years.

It is clear, though, that both jurors failed to reveal their involvement in certain prior lawsuits. It is equally clear from the responses of all of the prospective jurors, however, that the attorneys must have realized that the trial court's general question regarding prior lawsuits was inadequate. Jurors Willis and Smith, who were also among those remaining silent after the court's general question, revealed involvement in prior lawsuits upon more specific questioning by the attorneys. Another prospective juror, Juror Shadden, replied "no" to plaintiff's attorney's direct question whether he or any member of his family had been involved in any kind of lawsuit. When the attorney subsequently asked him whether he had ever used a lawyer, however, Shadden replied that he had used one in connection with his divorce. Shadden additionally stated that he had not been satisfied with the way the court system had operated in his case, but that his experience would not affect his judgment in plaintiff's case. Plaintiff's attorney apparently did not consider either Shadden's divorce experience or his omission important, because both parties accepted him as a juror. We may fairly conclude, therefore, that the attorney would have reacted similarly to the divorce experiences of Dodge and Darnell had they been revealed. In addition, both jurors revealed prior litigation experience (Dodge as a litigant and Darnell as a ...

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