Elston v. Morgan, 18364.

• Citation: 440 F.2d 47
• Decision Date: 09 March 1971
• Docket Number: No. 18364.,18364.
• Parties: Gloria ELSTON, Plaintiff-Appellant, v. Larry MORGAN and Clarence A. Brown, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

440 F.2d 47 (1971)

Gloria ELSTON, Plaintiff-Appellant, v. Larry MORGAN and Clarence A. Brown, Defendants-Appellees.

No. 18364.

United States Court of Appeals, Seventh Circuit.

March 9, 1971.

Edward J. Kionka, Champaign, Ill., John E. Norton, Belleville, Ill., James Koester, St. Louis, Mo., for plaintiff-appellant.

David B. Stutsman, Walker & Williams, East St. Louis, Ill., for defendants-appellees.

Before DUFFY, Senior Circuit Judge, FAIRCHILD, Circuit Judge and CAMPBELL, Senior District Judge.^*

CAMPBELL, Senior District Judge.

This diversity tort case results from a collision of an automobile driven by plaintiff-appellant, Gloria Elston with a truck owned by defendant, Larry Morgan operated by his employee, defendant Clarence Brown.

The collision occurred at 6:30 P.M. on January 5, 1967. It was clear, dry and dark. Plaintiff was travelling east on Route 50 in St. Clair County, Illinois approaching the intersection of Route 111, a north-south road crossing Route 50 at right angles. Defendant Brown, driving a semi-truck tractor pulling a loaded trailer weighing a total of 72,834 pounds, was proceeding in a westerly direction in the curb lane of Route 50 also approaching the intersection. The truck was in good mechanical condition. The intersection was regulated by ordinary traffic lights and was in a busy rural area. The speed limit on Route 50 was 65 miles per hour except that in the vicinity of the intersection it was posted at 45 miles per hour.

Plaintiff approached the intersection in the left east bound lane of Route 50 preparing to turn north onto Route 111. The traffic light was green as she approached. Two cars turned left ahead of her, the first just as the light turned yellow and the second on the yellow light. As she reached the intersection she saw defendants' truck approaching from the east. She entered the intersection on the yellow light and continued her turn left. As she completed her turn to go north on Route 111, her automobile was struck by defendants' westbound truck. Various witnesses testified that the truck was moving at a speed of between 35 and 50 miles per hour prior to the impact. Plaintiff sustained serious head injuries resulting in substantial permanent disability.

The case was tried to a jury. The following special interrogatory was submitted to the jury together with the general issue:

"Do you find from the evidence that at and immediately prior to the collision in question, the plaintiff was guilty of any contributory negligence which was a proximate cause of the collision?"

The parties stipulated to a sealed verdict. The jury returned a general verdict for plaintiff in the amount of $500,000.00, the full amount asked in the complaint, but answered the special interrogatory in the affirmative. The trial court entered judgment for defendants on the basis of the jury's answer to the interrogatory and denied plaintiff's post trial motion for a new trial.

Plaintiff's primary contentions on appeal relate to the form of the special interrogatory and to the procedures surrounding its use. Specifically, plaintiff argues that the form of the interrogatory was improper; that it was submitted to the jury under the mistaken belief that it was mandatory that it be given; and that the district court, acting under a fundamental misunderstanding of its powers and duties, erred in the procedure by which it entered judgment for defendants on the verdict.

As to the form of the interrogatory, we first observe that this specific interrogatory is submitted almost routinely in Illinois and has frequently over many years been approved by the courts of that State. Sutton v. Peoples Gas Light and Coke Company, 119 Ill.App.2d 471, 256 N.E.2d 19 (1970); Moyers v. Chicago and E. I. R. Co., 43 Ill.App.2d 316, 193 N.E.2d 604 (1963); Krieger v. A. E. & C. R. R. Co., 242 Ill. 544, 90 N.E. 266 (1909).

Plaintiff acknowledges the general use of the interrogatory, but objects to the use of the word "any" contributory negligence and argues that this may be implied to impose a different and stricter standard than "reasonable care and caution" as contained in the general instructions. The jury was specifically instructed however, that want of reasonable care on plaintiff's part is called contributory negligence. We find no error in the use of the word "any" in the special interrogatory.

Plaintiff next argues that the interrogatory was submitted by the district court under the mistaken belief that it was required by Illinois law to submit the interrogatory, and had no discretion in the matter. See Moyers v. Chicago and E. I. R. Co., 43 Ill.App.2d 316, 193 N.E.2d 604 (1963).

We first note that there was no objection to the proposed interrogatory being submitted to the jury.¹ Regardless of the reasons or motives of the district court in submitting the interrogatory, it was clearly not an abuse of discretion to do so.

As has been so often stated in the past, the use and form of special interrogatories by federal courts sitting in diversity cases is governed by rule 49 of the Federal Rules of Civil Procedure and not by state law or practice, and is a matter particularly within the sound discretion of the trial judge. As stated by Judge Duffy speaking for this court in Tillman v. Great American Indemnity Co. of New York, 7 Cir., 207 F.2d 588, 593 (1953):

"in the submission of a special verdict or interrogatories to accompany a general verdict, federal courts are governed by Rule 49, Federal Rules of Civil Procedure, 28 U.S.C.A., and not by the law of the State. In Cohen v. Travelers Ins. Co., 7 Cir., 134 F.2d 378, 384, we held that the submission of special interrogatories was a matter of procedure and was discretionary with the trial court. In Marcus Loew Booking Agency v. Princess Pat., 7 Cir., 141 F.2d 152, 154, we held that Rule 49(b) is permissive, not mandatory, and whether the court will submit special

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