Farmer v. Alton Bldg. & Loan Ass'n

• Citation: 294 Ill.App. 206,13 N.E.2d 652
• Decision Date: 09 March 1938
• Docket Number: Ag. No. 14.
• Parties: FARMER v. ALTON BUILDING & LOAN ASS'N.
• Court: United States Appellate Court of Illinois

294 Ill.App. 206

13 N.E.2d 652

FARMER

v.ALTON BUILDING & LOAN ASS'N.

Ag. No. 14.

Appellate Court of Illinois, Fourth District.

March 9, 1938.

Appeal from Circuit Court, Madison County; Dick H. Mudge, Judge.

Suit for wrongful death by Norman Farmer, administrator of the estate of Lloyd Farmer, deceased, against the Alton Building & Loan Association. From an order granting a new trial after verdict for plaintiff, plaintiff appeals.

Affirmed and remanded. Manuel M. Wiseman, of Alton, and Philip G. Listeman, of East St. Louis, for appellant.

O'Neill & O'Neill, of Alton, for appellee.

MURPHY, Justice.

The defendant, the Alton Building & Loan Association, owned a lot located in the village of East Alton, and by verbal arrangement leased it to one Fentress from month to month. He took possession and occupied it as a family residence. Fifteen days after he began to occupy the premises, Lloyd Warner Farmer, plaintiff's intestate, a boy five and a half years old, while playing on the lot with Fentress' children, fell into a cesspool located on the back of the lot and was drowned. Plaintiff started this suit to recover damages for said alleged wrongful death.

The jury returned a verdict for the plaintiff and assessed his damages at $4,750. The defendant then filed a motion for a judgment notwithstanding the verdict, which was overruled, and a motion for a new trial, which was granted. Plaintiff was granted leave to appeal from that order.

The record does not disclose which rulings the court deemed erroneous and upon which the new trial was ordered. Defendant in its answer to plaintiff's petition for leave to appeal states that it has no objection to granting leave to appeal, but contends that the court erred in overruling its motion for judgment notwithstanding the verdict and in denying its original motion to dismiss the complaint, and contends that it can attack the insufficiency of the pleading on its motion for a judgment notwithstanding the verdict.

Prior to the adoption of the Civil Practice Act, Ill.Rev.Stat.1937, c. 110, § 125 et seq., a motion for a judgment notwithstanding the verdict was not available to a defendant. It was a privilege given solely to the plaintiff and was a judgment rendered in favor of the plaintiff without regard to the verdict obtained by the defendant. Teehan v. Union Bridge Co., 84 Ill.App. 532;Aldrich v. Mathias, 141 Ill.App. 590.

Section 68 of the Civil Practice Act, Ill.Rev.Stat.1937, c. 110, § 192, provides that in all civil actions at law where either party shall at the close of testimony move for a directed verdict that the court may reserve its decision and submit the case to the jury and, after recording the verdict, may, if it concludes that the motion for a directed verdict should have been granted, allow the same and enter a judgment notwithstanding the verdict.

Supreme Court Rule 22, Ill.Rev.Stat.1937, c. 110, § 259.22, is as follows: “The power of the Court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the Court to direct a verdict without submitting the case to the jury.”

This section changes the rule under the former practice and permits either party to file a motion for judgment notwithstanding the verdict, but its only function is to raise the question as to whether the motion for a directed verdict should have been allowed. It has been held that the trial court in passing upon a motion for judgment notwithstanding the verdict has no more authority to weigh and determine controverted questions of fact, under the Civil Practice Act, than under the Practice Act of 1907, Smith-Hurd Stats. c. 110, Appendix, § 1 et seq. Gardiner v. Richardson, 293 Ill.App. 40, 11 N.E.2d 824;Capelle v. Chicago & N.W. Ry. Co., 280 Ill.App. 471;Illinois Tuberculosis Ass'n v. Springfield Marine Bank, 282 Ill.App. 14.

Under the former practice it was held that a motion to exclude the evidence and for a directed verdict was not a proper method of questioning the legal sufficiency of the declaration as a pleading, Swift & Co. v. Rutkowski, 182 Ill. 18, 54 N.E. 1038;Klofski v. Railroad Supply Co., 235 Ill. 146, 85 N.E. 274;Carson-Payson Co. v. Peoria Terrazzo Co., 288 Ill.App., 583, 6 N.E.2d 534, and there is nothing in said section 68 or rule 22 which extends or broadens the scope of inquiry on such a motion so as to reach a defect in the complaint. The other points alleged in defendant's motion for a judgment notwithstanding the verdict were in reference to the court's rulings on the admission and rejection of evidence. These questions are likewise outside the functions of such a motion.

Defendant's motion to dismiss the complaint, which was filed before its answer, alleged in general terms that the complaint did not state a cause of action. It was properly overruled for failure to point out wherein it was defective as required by section 45 of the Civil Practice Act, Ill.Rev.Stat.1937, c. 110, § 169. Hitchcock v. Reynolds, 278 Ill.App. 559.

Subparagraph (3), section 42 of the Civil Practice Act, Ill.Rev.Stat.1937, c. 110, § 166(3) provides that all defects in pleading, either in form or substance, not objected to in the trial court, shall be deemed to be waived and, since defendant did not file a motion in arrest of judgment and did not have a sufficient motion to dismiss, all defects in the complaint either in form or substance are on this appeal deemed to have been waived.

Defendant's motion for a new trial specified 21 different grounds, which ones the court sustained is not shown by the record, but counsel have discussed those pertaining to defendant's motion for a directed verdict, refusal of defendant's instructions, excessiveness of the verdict, and in not granting a new trial for newly discovered evidence.

Defendant's answer admits the ownership of the lot, the presence of the cesspool, and its use by its tenants, that it leased the premises to Fentress and agreed to keep the same in repair, but avers that at the time of the leasing there was no necessity for any repairs. It denies that the covering over the cesspool was in a dangerous condition when Fentress moved in or at any other time and that it had no knowledge of its condition.

The evidence discloses that the cesspool was located on the rear of the lot, was 7 or 8 feet deep, about 4 feet in diameter, and was covered with 2-inch boards with approximately a foot of earth on the boards, and this covered with dead weeds, cinders, and other débris, forming a mound about 12 feet in diameter.

Deceased was residing with his parents on a lot on the opposite side of the same block, the lots contacting at the corners. There was no fence or other obstruction to mark the boundary line between the lots. About 3 p. m. April 6th deceased left his home with the consent of his mother, to play with the Fentress children and other children of the neighborhood ranging in ages from 2 to 6 years. Deceased was seen playing with these children on this lot near the Fentress garage and 8 to 10 feet from the cesspool. In about 30 minutes he disappeared and search revealed that he had gone onto the earth covering the cesspool and the boards underneath had given away, dropping him into the pool where he was drowned.

Defendant had a maintenance foreman for this and other properties and another agent to collect rents from Fentress and other tenants. There is evidence that the neighbors to the Fentress property had as early as June preceding the accident observed an opening in the top of the pool 12 to 18 inches in diameter and had on at least two occasions prior to the occupancy by Fentress told the maintenance foreman and rent collector of the condition and that once the foreman went to the pool and looked at it and remarked that it would have to be repaired. Both agents denied any such statements or examination of the pool, but the maintenance foreman testified he checked the property for defects a few days before Fentress moved, that he went near the mound of earth over the pool, that it looked all right, and he reported to the defendant...