Bowman v. Illinois Cent. R. Co.

• Decision Date: 20 March 1957
• Docket Number: No. 34066,34066
• Citation: 11 Ill.2d 186,142 N.E.2d 104
• Parties: Elizabeth B. BOWMAN, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee.
• Court: Illinois Supreme Court

Page 104

142 N.E.2d 104

11 Ill.2d 186

Elizabeth B. BOWMAN, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee.

No. 34066.

Supreme Court of Illinois.

March 20, 1957.

As Modified on Denial of Rehearing May 20, 1957.

On Petition for Rehearing.

James A. Dooley, Chicago, for appellant.

Floyd E. Thompson, Charles J. O'Laughlin, Thomas P. Sullivan, Joseph H. Wright, Herbert J. Deany and Robert S. Kirby, Chicago, for appellee.

BRISTOW, Justice.

This court has allowed plaintiff's petition for leave to appeal from a judgment of the Appellate Court reversing and remanding for a new trial a judgment entered by the circuit court of Cook County on a jury verdict awarding plaintiff damages under the Federal Employers' Liability Act in the amount of $200,000 for injuries sustained to plaintiff's ward, Charles D. Bowman, while in the course of his employment by defendant Illinois Central Railroad Company. The jury answered adversely to defendant this specific interrogatory: 'Do you find by a preponderance of the evidence that at the time plaintiff's ward executed the release he was incapable of understanding what he was doing and unable to comprehend the terms and effect of the relase?' The cause also presents plaintiff's motion for the issuance of this court's ancillary writ of mandamus, certiorari, or other writ to require the Appellate Court to strike the remanding portion of its order under section 75(2)(c) of the Civil Practice Act.

There are several distinct legal issues presented for our determination by this appeal: Whether under the terms of section 75(2)(c) of the Civil Practice Act (Ill.Rev.Stat.1955, chap. 110, par. 75(2)(c),) the striking of a remanding order is mandatory upon the Appellate Court where the party whose judgment was reversed files the specified motion and affidavits, or whether the order may be stricken only where the judgment is reversed and remanded for insufficient evidence; whether the Appellate Court can weigh the evidence in reviewing Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., cases; whether the jury verdict is supported by the evidence; and whether the Appellate Court erred in its application of the law respecting the admission of certain evidence.

Before we can properly consider the questions of law relating to the merits of the cause, it is necessary to ascertain first whether the jurisdiction of this court can properly be invoked. Our appellate jurisdiction is prescribed by the Civil Practice Act, and section 75 authorizes petitions for leave to appeal from Appellate Court determinations. We will review such judgments, however, only where there has been a final appealable order. Defendant argues that since the Appellate Court has refused to strike the portion of its order remanding the cause for a new trial, no final appealable order is presented, and that this court is without power to order the Appellate Court to finalize its judgment.

Plaintiff maintains that under section 75(2)(c), when the party whose judgment was reversed and remanded for a new trial by the Appellate Court files the requisite motions and affidavits waiving a new trial and stating that he will be unable on a future trial to adduce other or additional evidence, it is mandatory for the Appellate Court to strike the remanding portion of its order; and that if the Appellate Court refuses to do so, the Supreme Court may, in aid of its appellate jurisdiction, issue the auxiliary writ of mandamus or certiorari to determine the questions of law presented in the cause.

This controverted section of the Civil Practice Act provides: 'In any case heard and determined in the trial court upon actual trial in which the Appellate Court upon appeal from the final judgment or decree entered in the cause in the trial court reverses said judgment or decree and remands the cause for a new trial or hearing, and in which the party in whose favor the trial court's judgment or decree was rendered shall present to and file with the Appellate Court an affidavit stating that he will be unable on a future trial or hearing to adduce other or additional evidence, facts or circumstances than were adduced in the trial court and expressly waiving the right to a new trial or hearing and consenting and requesting that the portion of the judgment of the Appellate Court remanding the cause for new trial or hearing be deleted and stricken from the judgment of the Appellate Court, then that court upon motion shall amend its judgment by striking out the portion thereof remanding the cause for new trial or hearing. Thereupon it shall be competent for the Supreme Court to grant leave to appeal from said final judgment of reversal for its review and determination with the same power and authority in the case, and with like effect, as in other cases in which leave to appeal from the final judgments of the Appellate Courts is authorized in this section.'

In support of her contention, plaintiff cites the original historical note appearing in the annotated volume of the statutes (Smith-Hurd Ill.Anno.Stat., chap. 110, § 75, p. 68) wherein the provision is interpreted as imposing a mandatory requirement upon the Appellate Court to strike the remanding portion of its order where a party files a motion supported by proper affidavits. Plaintiff also cites similar interpretations by other authorities on the Civil Practice Act. 5 Nichols, Ill. Civil Practice, 643; 23 Chicago Bar Record 237, 251.

In an article on Illinois practice, prepared by one of the draftsmen of the act, Albert E. Jenner, Jr., shortly after enactment of section 75(2)(c), it is stated: 'Under the practice obtaining prior to the enactment of subsection 75(2)(c) of the Civil Practice Act, a judgment of the Appellate Court reversing and remanding a case for a new trial could be made final for purposes of review by the Supreme Court on petition for leave to appeal if the Appellate Court, in its discretion, on motion and affidavit of the party in whose favor judgment had been entered in the trial court, struck the remandment portion of its judgment. The applicant was required to state in the affidavit in support of his motion that he would be unable, on a further trial or hearing to adduce other additional evidence, facts or circumstances than were adduced on the trial resulting in the judgment reversed by the Appellate Court, expressly waiving his right to a new trial and consenting and requesting that the portion of the judgment of the Appellate Court remanding the cause for a new trial or hearing be deleted and stricken from the judgment of the Appellate Court. The amendment of the Appellate Court judgment by striking the remanding portion of the judgment was entirely discretionary with the Appellate Court. Section 75 of the Civil Practice Act was amended by adding a new subsection (2)(c), codifying the foregoing practice, except that the striking of the remandment portion of the judgment of the Appellate Court is made mandatory.' (Italics added.) 23 Chicago Bar Record 237, 251.

Defendant, however, in support of its contention that the striking of the remanding order is discretionary with the Appellate Court and should be exercised only where the cause is reversed on the ground of insufficient evidence, cites Lees v. Chicago & North Western R. Co., 409 Ill. 536, 100 N.E.2d 653. In the Lees case there were several charges of negligence, and the record did not disclose upon which ground plaintiff recovered in the trial court. On review, the Appellate Court held that a certain contract should have been admitted in evidence, and reversed and remanded the cause for a new trial. Upon plaintiff's motion, the remanding order was stricken. On appeal, and Supreme Court held that inasmuch as this contract, even if admitted in the record, was not a defense to all of the charges in the complaint, therefore it was not possible to enter a final judgment in favor of the defendant in the cause, and consequently the striking of the remanding order was not proper. The court stated that the party seeking to strike the remanding order must present in his affidavit a question on which the Appellate Court can render a final judgment.

In the instant case, however, plaintiff has alleged a single basis for recovery, and defendant has interposed the defense of a release, which, if valid, would bar plaintiff's entire claim. The Appellate Court, as grounds for reversal, has found the evidence supporting the general and special verdicts, both favorable to the plaintiff, contrary to the manifest weight thereof, and that there were errors in the admission and rejection of evidence which tended to enhance the validity of the release; consequently, a final judgment for defendant could have been entered. Unlike the Lees case where the grounds for reversal by the Appellate Court involved a defense to only a part of plaintiff's claim, in the instant case the ground for reversal by the Appellate Court related to a defense which barred plaintiff's entire claim. Therefore, since a final order for defendant could be entered in the instant case, we cannot sustain defendant's contention that the ratio decidendi of the Lees case precludes the striking of the remanding order herein.

We are cognizant, however, of the further dictum by that court, relied upon by defendant, which would limit the application of section 75(2)(c) to cases where the cause is reversed and remanded for insufficient evidence. Plaintiff argues that this dictum, in no way necessary to the decision, is contrary to the terms and objectives of the statute, and would render section 75(2)(c) a nullity.

A careful reading of section 75(2)(c) reveals that by its term it does not limit the right to strike the remanding order to cases where the Appellate Court reverses for insufficient evidence, or for any other particular grounds. The statute is all encompassing, and grants the right to strike the remanding portion of the order in all...