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05/16/97 BERNARD CHRISTENSON AND CYNTHIA

May 16, 1997

BERNARD CHRISTENSON AND CYNTHIA CHRISTENSON, PLAINTIFFS-APPELLANTS,
v.
DAVID RINCKER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Shelby County. No. 94-L-4. Honorable Ronald D. Spears, Judge, presiding.

As Corrected June 2, 1997.

The Honorable Justice Goldenhersh delivered the opinion of the court. Chapman and Maag, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

On April 24, 1992, plaintiff, Bernard Christenson, was driving on Illinois Route 16 with his wife, plaintiff Cynthia Christenson, as a passenger when their vehicle struck a cow on the roadway. The cow was owned by defendant, David Rincker. Both plaintiffs were injured as a result of this collision and filed suit against defendant. At trial, the primary issue of contention was whether defendant used reasonable care in restraining his cow from running at large. The jury returned a verdict for defendant. On appeal, plaintiffs pose three issues for this court: (1) whether the trial court erred in the determination of the burden of proof when it refused plaintiffs' tendered instruction and, as claimed by plaintiffs, imposed on plaintiffs the burden of disproving defendant's affirmative defense under the statute; (2) whether defense counsel's references to insurance during voir dire and in closing argument constituted reversible error; and (3) whether the trial court erred in granting defendant's motion for leave to file a late jury demand. We reverse and remand for new trial based on our disposition of issue one.

FACTS

Since we reverse and remand on the basis of issue one, the burden of proof problem, the following statement of facts will deal with the factual basis necessary for dealing with the burden of proof argument and the argument concerning the jury demand. We presume that any reference to insurance will not recur upon retrial.

Plaintiffs filed an amended complaint which was responded to by a motion to dismiss and ultimately answered after denial of that motion. Neither plaintiffs' amended complaint nor defendant's answer included a demand for jury trial. Approximately six months after defendant's answer, defendant filed a motion to allot cause for jury trial. At the hearing on that motion, defendant's counsel argued that the parties had discussed this case going to a jury at a hearing on September 27, 1994, the subject of which was defendant's motion to dismiss. On November 1, 1994, the court entered a scheduling order that set this case for jury trial the next May. The trial court agreed with defense counsel as to the September 27, 1994, discussion and in the exercise of its discretion granted defendant's motion for jury trial. The court noted that the September 27, 1994, discussion occurred prior to defendant's filing of his answer, that the November 1, 1994, scheduling order set the case for jury trial, and that the parties were operating under the assumption that this cause would be tried to a jury. Accordingly, the court found good cause and allowed the motion for jury trial, stating it was a close question and the court was exercising its discretion. Our review of the transcript of the hearing on September 27, 1994, indicates that the jury status of this case was not discussed, but the November 1, 1994, scheduling order did set the matter for jury trial. As noted above, this case ultimately went to trial by jury. During the instruction conference, plaintiffs tendered their instruction two, a modified version of Illinois Pattern Jury Instructions, Civil, No. 21.03 (3d ed. 1994) (hereinafter IPI Civil 3d No. 21.03), which the trial court refused. That instruction provided, in part, that "in this case the defendant has asserted the affirmative defense that: (a) the defendant's livestock were running at large without his knowledge; and (b) the defendant used reasonable care in restraining his livestock from so running at large," and that defendant has the burden of proving each of these propositions. The circuit court gave defendant's version of IPI Civil 3d No. 21.03, which stated that plaintiffs had the burden of proving "that the defendant did not use reasonable care to restrain his cattle from running at large." The case was submitted to the jury, which returned a verdict in favor of defendant. Plaintiffs filed a posttrial motion, which was denied by the circuit court, and timely filed this appeal.

ISSUES

I. BURDEN OF PROOF

Plaintiffs contend that the court committed prejudicial error in its choice of a burden of proof instruction. Specifically, they argue that the trial court improperly placed upon plaintiffs the burden of disproving the affirmative defenses of defendant rather than properly treating them as affirmative defenses on which defendant had the burden. Defendant argues that the trial court properly apportioned the burden of proof, and that even if said apportionment was improper, the evidence so overwhelmingly favored defendant that such error would be harmless. We agree with plaintiffs.

The statute under which this case was tried is the Illinois Domestic Animals Running at Large Act (Act) (510 ILCS 55/1 et seq. (West 1994)), which provides, in pertinent part:

" ยง 1. No person or owner of livestock shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large." 510 ILCS 55/1 (West 1994).

The history of this statute and its evolution to its present form provides an essential background to the ...


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