Corcoran v. City of Chicago

• Decision Date: 05 June 1940
• Docket Number: No. 25064.,25064.
• Citation: 27 N.E.2d 451,373 Ill. 567
• Parties: CORCORAN v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

373 Ill. 567

27 N.E.2d 451

CORCORAN

v.CITY OF CHICAGO.

No. 25064.

Supreme Court of Illinois.

April 10, 1940.

Rehearing Denied June 5, 1940.

Error to First Division, Appellate Court, First District, on Appeal from Superior Court, Cook County; William P. Boynton, Judge.

Action by John F. Corcoran against the City of Chicago to recover damages for personal injuries. A judgment for plaintiff was reversed by the Appellate Court, 296 Ill.App. 645, 16 N.E.2d 922, and plaintiff brings error. On defendant's motion to dismiss the writ of error for want of jurisdiction.

Motion denied, and judgment of the Appellate Court affirmed.Charles C. Spencer and Richard M. Spencer, both of Chicago, for plaintiff in error.

Barnet Hodes, Corp. Counsel, of Chicago (Alexander J. Resa, J. Herzl Segal, L. Louis Karton, and Sydney R. Drebin, all of Chicago, of counsel), for defendant in error.

MURPHY, Justice.

John F. Corcoran, plaintiff in error, referred to as plaintiff, began a suit in the superior court of Cook county against the city of Chicago, referred to as defendant, to recover damages for personal injuries alleged to have been caused by the negligent acts of the defendant. The cause was tried with a jury and resulted in a verdict for the plaintiff for $5,000. A motion for new trial was overruled and judgment entered on the verdict. On appeal, the Appellate Court for the First District reversed the judgment and remanded the cause for another trial. The plaintiff filed a motion in the Appellate Court asking that the remanding part of the order be stricken. The motion was supported by affidavit that another trial would involve the same issues and that no additional or different evidence could be presented by the plaintiff. The motion was granted, and the case is here for review on a common-law writ of error. Defendant moved to dismiss the writ for want of jurisdiction, and such motion was taken with the case. A proper consideration of the motion, and the points urged for and against it, makes it necessary to state the error assigned by plaintiff on the merits.

The negligence charged was that defendant had carelessly and negligently permitted certain streets to be and remain in an unsafe condition for travel, in that there were depressions, obstructions, holes and uneven places in the surface of the street which rendered it unsafe and dangerous to persons riding in or driving vehicles along the same, and that by reason of such conditions the automobile in which plaintiff was riding was overturned causing injuries to plaintiff. There was evidence which tended to prove the negligence charged but, on the other hand, there was evidence which, if true, showed the street to be in a reasonably good state of repair. The opinion of the Appellate Court is confined to a review of the evidence bearing upon the question of negligence. The evidence was conflicting. The Appellate Court found the verdict was against the manifest weight of the evidence and reversed the judgment for that reason.

It is conceded the power which the Appellate Court assumed to exercise in reviewing the evidence and setting aside the verdict is found is section 92(3b) of the Civil Practice Act (Ill.Rev.Stat.1939, chap. 110, par. 216) which provides that Appellate Courts may review ‘error of fact, in that the judgment, decree or order appealed from is not sustained by the evidence or is against the weight of the evidence.’ Plaintiff's position is that such provision, as applied to facts found by a jury upon conflicting evidence, as in the instant case, is unconstitutional, in that the findings of the Appellate Court deprive the successful party of the benefits of the verdict and take from him the right to a trial by jury as guaranteed by section 5 of article 2 of the Constitution, Smith-Hurd Stats.

In support of defendant's motion to dismiss the writ it is urged (a) the remanding clause of the order of the Appellate Court was stricken on plaintiff's motion, and that without such part being stricken plaintiff had the right to another jury trial and can not now be heard to complain that he has been deprived of a jury trial, for it was his action that induced the Appellate Court to change the order; (b) the validity of the statute was not raised in apt time; and (c) that this court will not pass on a point which was not submitted to the Appellate Court before it decided the case.

The order of the Appellate Court as first entered was not final. Under it plaintiff had the right to have his case submitted to another jury but, as appears from the affidavit, he had no additional or different evidence and had he recovered a verdict on the second trial, on appeal he would have been confronted with the same defects in the record for which the Appellate Court reversed the first judgment. The striking of the remanding clause made the order final and appealable, and had the effect of depriving plaintiff of a right to another jury trial in the event the judgment of the Appellate Court is sustained. The procedure adopted has been followed in other cases in which this court took jurisdiction and disposed of the case on its merits. Hartley v. Red Ball Transit Co., 344 Ill. 534, 176 N.E. 751;Devine v. Pfaelzer, 277 Ill. 255, 115 N.E. 126, L.R.A.1917C, 1080. Plaintiff's action in causing the remanding part of the order to be stricken does not, in itself, bar him from urging the invalidity of the statute under which the Appellate Court acted.

Defendant's contentions that the validity of the statute was not raised in apt time, and that this court will not pass on a question which was not submitted to the Appellate Court before its decision, will be considered together. The validity of section 92(3b) was raised for the first time in the Appellate Court on plaintiff's petition for rehearing. This was the first opportunity plaintiff had to question the validity of the act for, prior to the filing of the opinion, he could not anticipate either affirmance or reversal or whether the power of the court would be exercised under section 92(3b) for error of fact or under other provisions for error of law. Where the constitutionality of an act affecting the jurisdiction of the Appellate Court is first questioned in that court it has the authority to pass upon the validity of the act. Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 140 N.E. 49.

Section 11 of article 6 of the constitution provides for the creation of inferior Appellate Courts of uniform organization and jurisdiction, upon which jurisdiction may be conferred and from which appeals and writs of error shall lie to this court in all criminal cases and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law. By sub-paragraph 2 of section 75 of the Civil Practice Act, (Ill.Rev.Stat.1939, chap. 110, par. 199) the General Assembly has made provision for this court to review the judgments and decrees of the Appellate Court in certain cases, but excepted those cases wherein appeals are specifically required by the constitution to be allowed from the Appellate Court to the Supreme Court. In Bagdonas v. Liberty Land & Investment Co. supra, it was held that this court acquires its jurisdiction to review judgments of the Appellate Court in cases where the validity of a statute is involved, by virtue of this constitutional provision and not by the Practice Act.

That part of sub-paragraph 2 of section 75 referred to is substantially the same as section 121 of the Practice Act of 1907, Smith-Hurd Stats. c. 110, Appendix, § 120. The difference between the two provisions is, the act of 1907 excepted those cases wherein ‘appeals and writs of error’ were specifically required by the constitution to be taken from the Appellate Court to this court, while the present act excepts cases wherein ‘appeals' are required. Under the act of 1907 it was held that no method of review by appeal had been provided in a case where the validity of a statute was first raised in the Appellate Court, but that the constitutional question could be reviewed in this court on a common-law writ of error. Sixby v. Chicago City Railway Co., 260 Ill. 478, 103 N.E. 249, Ann.Cas.1914D, 539. The omission of the words ‘and writs of error’ in the present act does not change the rule which prevailed prior to the adoption of the Civil Practice Act. The right to review such question by common-law writ of error still exists. The motion to dismiss the writ of error is denied.

Prior to 1837, the law of this state was that the granting or refusal of a motion for a new trial rested in the sound discretion of the trial court and the ruling thereon could not be urged as error in the court of review. Harmison v. Clark, 1 Scam. 131;Sawyer v. Stephenson, Breese 24; Street v. Blue, Breese 261; Adams v. Smith, Breese 283; Vernon, Blake & Co. v. May, Breese 294; Littleton v. Moses, Breese 393. In 1837, an act was passed which provided ‘exceptions taken to opinions or decisions of circuit court overruling motions in arrest of judgment, motions for new trials and for continuance of causes shall hereafter be allowed and the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding.’ The substance of the act of 1837 was re-enacted as section 23 of chapter 83 of the Practice Act of 1845 (Rev.Stat.1845, p. 416) and in the form then adopted became section 83 of the Practice Act of 1907, (Smith-Hurd Stat.1931, chap. 110,) and paragraph 3b of section 92 of the present act is, in effect, the same as the prior enactments, so that the section in question has been the statutory law of this state since 1837.

Neither the act of 1837, nor any of the succeeding acts, have been challenged on constitutional grounds such as are raised against the present act in the instant case. In Smith v. Shultz, 1838, 1 Scam. 490,32 Am.Dec. 33, in considering an error assigned on the court...