APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
534 N.E.2d 423, 179 Ill. App. 3d 113, 128 Ill. Dec. 241 1989.IL.62
JUSTICE BILANDIC delivered the opinion of the court. HARTMAN and SCARIANO, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
Defendants, Chicago Transit Authority (hereinafter CTA) and Roosevelt Montgomery, appeal from an adverse jury verdict and judgment in the sum of $115,000 plus costs in favor of the plaintiff.
On December 3, 1980, plaintiff boarded a CTA bus operated by CTA employee defendant Montgomery. The CTA is a common carrier of passengers for hire in the City of Chicago. Immediately after boarding the bus and paying her fare, and before she had a chance to be seated, the bus made a sudden movement, then stopped abruptly. This caused the plaintiff to be knocked down, fall out of the bus, and sustain personal injuries., Plaintiff was the only occurrence witness that testified at trial. The driver did not testify.
Although defendants raised a series of alleged errors, they seek a reversal and new trial principally because: (1) the trial court improperly granted plaintiff's motion to file a late jury demand; (2) defendants' motion for a continuance was improperly denied; (4) closing argument by plaintiff's counsel was prejudicial; (5) the trial court erred in denying defendants' motions for directed verdict and for a judgment notwithstanding the verdict; and (6) the cumulative effect of other errors resulted in an unfair trial. I
Defendants urge reversal because the order of the trial court permitting plaintiff to file a late jury demand was prejudicial to defendants. On May 6, 1981, plaintiff commenced this action without a request for a jury trial. On June 1, 1981, defendant CTA filed its appearance and jury demand. After discovery of the identity of the bus driver, plaintiff added Montgomery as a defendant. On August 29, 1981, Montgomery filed his appearance and jury demand. Thus, both defendants complied with section 2-1105(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1105(a) (formerly Ill. Rev. Stat. 1979, ch. 110, par. 64(1))). Plaintiff's case then took its place on the Cook County law jury calendar rather than the law non-jury calendar.
Defendants claim that they indicated an intention to withdraw their jury demand in 1985. However, this intention was never executed. In fact, after this alleged intent was to have been indicated, new trial counsel entered the case for both defendants on August 16, 1985. New counsel filed an appearance and jury demand for both defendants. Thus, rather than completing the alleged intent to withdraw defendants' jury demand, new counsel actually reaffirmed defendants' initial demand for a jury trial. The case remained on the law jury calendar.
Approximately two years later, on the eve of trial, defendants withdrew their jury demand. Thereupon, the trial court granted plaintiff's motion for leave to file a late jury demand instanter.
Section 2 -- 1105(a) of the Code of Civil Procedure does not deal with the right of the plaintiff who did not initially demand a jury to be able to file a late jury demand after the defendant withdraws a timely demand. However, this issue was addressed by our supreme court in Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201. Hernandez was a personal injury case filed in the circuit court of Cook County. Plaintiff did not initially demand a trial by jury, but defendant did so when it filed its answer. Four years later, and immediately before trial, defendant withdrew its jury demand. Plaintiff, who was taken by surprise, sought leave to file his own jury demand without articulating any grounds therefor. The trial court denied the motion. The appellate court, however, reversed, and that decision was affirmed by the supreme court, thereby allowing plaintiff to file a late jury demand.
The supreme court explained that the delay suffered by the plaintiff as a result of defendant's jury demand constituted good cause for granting plaintiff's late jury demand:
"Plaintiff points out, and we take judicial notice of the fact, that a plaintiff who desires a jury trial in the circuit court of Cook County must wait approximately two years longer than those willing to have a bench trial. A plaintiff is thus faced with two mutually exclusive alternatives. He may obtain the benefit of a more prompt adjudication through a bench trial if he is willing to waive his right to jury trial, or he may opt for a jury trial and thereby relinquish any possibility of a more prompt adjudication. Each alternative presents considerations that are attractive to the personal injury plaintiff. Through a bench trial the plaintiff may recover damages sooner than he might if he chose a jury trial, but in a jury trial the plaintiff might enlist the sympathies of the jurors and improve his chances of recovery.
The appellate court agreed with plaintiff's analysis, holding that plaintiff's demand for a jury trial should have been granted. The court pointed out that plaintiff, because of the defendant's jury demand, had already lost the benefit of an early adjudication, and that a denial of the demand would deprive plaintiff of the advantage of a jury trial as well. [Citations.] We agree that this element of unfairness constitutes good cause for granting plaintiff's late jury demand and that, under the facts of this case, the trial Judge abused his discretion in denying plaintiff's demand." 73 Ill. 2d at 96-97.
Accord GNP Commodities, Inc. v. Walsh Heffernan Co. (1981), 95 Ill. App. 3d 966, 420 N.E.2d 659 (the trial court properly allowed plaintiff to file a jury demand five years after its complaint was filed upon the withdrawal of defendant's jury demand); Lebovitz v. Cahill (1979), 69 Ill. App. 3d 614, 387 N.E.2d 943 (the trial court abused its discretion in denying plaintiff leave to file a late jury demand where the defendant filed a ...