Chmielewski v. Marich

• Decision Date: 17 March 1954
• Docket Number: No. 32983,32983
• Citation: 42 A.L.R.2d 1023,2 Ill.2d 568,119 N.E.2d 247
• Parties: , 42 A.L.R.2d 1023 CHMIELEWSKI v. MARICH et al.
• Court: Illinois Supreme Court

Page 247

119 N.E.2d 247

2 Ill.2d 568, 42 A.L.R.2d 1023

CHMIELEWSKI v. MARICH et al.

No. 32983.

Supreme Court of Illinois.

March 17, 1954.

As Modified on Denial of Rehearing May 19, 1954.

Rosenberg & Oransky, Chicago, (James E. Hastings, Chicago, of counsel), for appellants.

Wachowski & Wachowski, Chicago, (Casimir R. Wachowski, and William M. Daemicke, Chicago, of counsel), for appellee.

SCHAEFER, Chief Justice.

The plaintiff brought this action under section 14 of article VI of the Liquor Control Act, Ill.Rev.Stat.1953, chap. 43, par. 135, against Emil Fako, Terrence Kennedy, Martin Marich, Frank Fara, and Julia Fara to recover damages for personal injuries sustained in an assault upon him by Fako and Kennedy, who were alleged to have become intoxicated from liquor obtained in a tavern owned by Marich. The Faras were alleged to be the owners of the premises on which the tavern was located. All the defendants were served with process but none appeared. A default judgment for $15,000 was entered against all of them except Kennedy.

Thereafter Frank and Julia Fara each filed a motion under section 72 of the Civil Practice, Act, Ill.Rev.Stat.1953, chap. 110, par. 196, asking that the judgment against them be set aside. Frank Fara denied that he was an owner of the premises. He also alleged that upon being served he had immediately given the summons to the insurance brokers from whom Julia Fara had obtained a policy protecting against liability under the Liquor Control Act, and that they had advised him that they would take care of the matter. Julia Fara, while admitting ownership, made like allegations of the delivery of her summons to the brokers. She also alleged that Frank Fara had later informed her that the matter had been taken care of. Both motions were denied.

A similar motion was subsequently filed by the defendant Fako to set the judgment aside as to him on the ground that he was a minor and that no guardian ad litem had been appointed to represent him. The court granted Fako's motion and vacated the judgment as to him. Thereafter, upon the petition of Frank and Julia Fara, the court entered an order vacating the judgment as to all the defendants in the case.

On appeal the Appellate Court affirmed as to Fako, but reversed so far as judgment as to the other defendants was set aside. Chmielewski v. Marich, 350 Ill.App. 379, 113 N.E.2d 69. From this decision Frank and Julia Fara filed a petition for leave to appeal to this court, contending that the trial court, upon vacating the judgment as to one defendant, was compelled as a matter of law to set it aside as to all the other defendants. The petition was allowed because an apparent inconsistency in our decisions had given rise to doubt as to the powers of trial and reviewing courts with respect to judgments entered jointly against more than one defendant.

The case for reversal rests on the common-law view which regarded a judgment against joint defendants as an 'entirety' which must stand or fall as a 'unit,' whether the liability which gave rise to the judgment was joint, or joint and several. In accordance with that view it has been held in this State that a judgment against two or more defendants, whether in contract or tort, was indivisible, and could neither be vacated by a trial court nor reversed by a reviewing court as to one defendant alone, even though it was not erroneous as to the others. See Fuller v. Robb, 26 Ill. 246; Jansen v. Varnum, 89 Ill. 100; Claflin v. Dunne, 129 Ill. 241, 21 N.E. 834; Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77, 68 N.E. 716; South Side Elevated Railroad Co. v. Nesvig, 214 Ill. 463, 73 N.E. 749.

The arbitrary and inflexible character of the common-law unit-judgment rule is, of course, at odds with the more discerning treatment otherwise accorded joint tortfeasors. Every joint tortfeasor is liable for all damages to which his conduct has contributed, and it is no defense that these damages would not have occurred without the concurring misconduct of another person. Siegel, Cooper & Co. v. Trcka, 218 Ill. 559, 75 N.E. 1053, 2 L.R.A., N.S., 647. As a result the plaintiff need not join all the tortfeasors as defendants, Lasher v. Littell, 202 Ill. 551, 67 N.E. 372; Village of Carterville v. Cook, 129 Ill. 152, 22 N.E. 14, 4 L.R.A. 721, and if he does sue more than one in the same action he may, after a favorable verdict against all, dismiss the action as to one and take judgment against the others alone. Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249, 80 N.E. 136. The jury may properly return a verdict in favor of one tortfeasor and against another, Republic Iron & Steel Co. v. Lee, 227 Ill. 246, 254, 81 N.E. 411, or the court may direct a verdict in favor of one codefendant and let the case against the other go to the jury, which may thereupon return a verdict against the latter. Humason v. Michigan Central Railroad Co., 259 Ill. 462, 102 N.E. 793; Fowler v. Chicago Railways Co., 285 Ill. 196, 120 N.E. 635. If a verdict is returned against two defendants the court may grant a new trial as to one of them only. Illinois Central Railroad Co. v. Foulks, 191 Ill. 57, 60 N.E. 890. Even under the Practice Act of 1907, this court, in Livak v. Chicago & Erie Railroad Co., 299 Ill. 218, 226, 132 N.E. 524, 527, had pointed out that the contrary rule, followed in many States, 'is proper and more in harmony with justice and economy in the disposition of lawsuits,' although in that case a majority of the court nevertheless adhered to the common-law rule.

Since the Livak case was decided in 1921, the enactment of the Civil Practice Act in 1933 has brought about a distinct change in attitude toward the decision of procedural questions, and has substantially altered the pertinent statutory provisions. Section 4 of that statute enjoins a liberal construction 'to the end that controversies may be speedily and finally determined according to the substantive rights of the parties'. Section 50 provides: '(1) Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; * * * and when an action or counterclaim is sustained in favor of, or against, only a part of the parties thereto, judgment may be rendered in favor of or against such parties respectively at any stage of the proceedings. But an unsatisfied judgment against one, or some, of several joint contractors, shall not discharge the other joint contractors from liability on the contract. The court shall control the proceedings so that the plaintiff shall receive but one satisfaction. A writ of execution may issue upon one or more judgments rendered in the same cause. Judgment may be entered in such form as may be required by the nature of the case and by the recovery or relief awarded, and more than one judgment may be rendered in the same cause. (2) Any party aggrieved by any such judgment may have a review thereof as herein provided, even though said cause remains undisposed of as to other parties.' Section 92(1)(e) authorizes this court and the Appellate Courts to 'Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, including a remandment, a partial reversal, the order of a partial new trial, * * * as the case may require'. Ill.Rev.Stat.1953, chap. 110, pars. 128, 174, 216.

After these statutory changes the common-law rule again came before the court in Minnis v. Friend, 360 Ill. 328, 196 N.E. 191. In that case Minnis had recovered a judgment against Friend and the city of Chicago for personal injuries resulting from the concurrent negligence of the defendants. On appeal we reversed the judgment as to the city because of a failure to give it proper notice of the action, but we held that this did not require that the judgment also be reversed as to Friend. The Minnis decision was followed in Crane v. Railway Express Agency, Inc., 369 Ill. 110, 15 N.E.2d 866. The appellants argue however that the Minnis case considered only the power of a reviewing court to order a partial reversal, and did not alter the common-law rule to the extent that it forbade partial vacation in the trial court. And in support of that view of the Minnis case, they point out that since its decision we have applied the common-law rule in our decisions in Fredrich v. Wolf, 383 Ill. 638, 50 N.E.2d 755; Gray v. First Nat. Bank, 388 Ill. 124, 57 N.E.2d 363, and Brown v. Zaubawky, 388 Ill. 351, 57 N.E.2d 856.

It is true that the precise issue before the court in Minnis v. Friend was only whether an appellate court might order a partial reversal. The opinion, however, makes it clear that the court did not limit itself to that point alone, but rejected the entire common-law rule. The court expressly rejected the suggestion that its decision be rested upon the powers of reviewing courts under section 92. On the contrary, the court said: 'There is no substantial reason to impel us to adhere to the common-law rule that a judgment is a unit where it is clear that no right of action existed, as a matter of law, against one defendant * * *, but a cause of action is proved against the other defendant * * *. In addition, section 4 of the Civil Practice Act provides that the act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. * * * We hold that under the Civil Practice Act the judgment is not...