Gille v. Winnebago County Housing Authority

• Decision Date: 29 January 1969
• Docket Number: Gen. No. 68--82
• Parties: Richard T. GILLE, Plaintiff-Appellant, v. WINNEBAGO COUNTY HOUSING AUTHORITY, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 636

244 N.E.2d 636

104 Ill.App.2d 470

Richard T. GILLE, Plaintiff-Appellant, v. WINNEBAGO COUNTY HOUSING AUTHORITY, a Municipal Corporation Defendant-Appellee.

Gen. No. 68--82.

Appellate Court of Illinois, Second District.

Jan. 29, 1969.

Asher, Greenfield, Gubbins & Segall, Chicago, for plaintiff-appellant.

Reno, Zahm, Folgate & Skolrood, Rockford, for defendant-appellee.

THOMAS J. MORAN, Justice.

This is an action for personal injuries suffered by the 9 1/2 year-old plaintiff on July 14, 1953 on the premises of a housing project owned and operated by the defendant, Winnebago County Housing Authority, and formerly known as the Camp Grant Barracks. On the date of the accident the plaintiff finished supper about six o'clock and went to the home of a young friend, Douglas Almquist, who lived in the project. Master Almquist's mother gave him paper and trash to burn. Together, the two boys went to a fifty or fifty-five gallon oil drum which had the top cut out and holes cut in the bottom and sides. Two of these drums had been provided outside of each of the 22 buildings in the housing project, having been placed there by the defendant's employees. The side holes, cut for the purpose of creating a draft, were about eight to fourteen inches from the bottom. Holes in the bottom of the drums were intended to drain any water. Tenants burned rubbish and trash in the drums every day pursuant to the instructions of the defendant. The drums were emptied every week.

Master Almquist ignited the contents of the barrel by throwing a burning piece of paper into the container while both boys stood within a foot and a half from the drum. Plaintiff testified that flames shot out from the bottom of the barrel igniting his trousers about the knee and that, in bending over to extinguish the burning denim, the flames spread to his shirt. Plaintiff admitted that in his deposition of February 12, 1968, he had stated that he 'couldn't tell' if his pantlegs had caught on fire. Also on cross-examination, plaintiff testified that there was no drum behind his family's residence in the project and that he had never burned papers in a barrel behind his residence, but also admitted that his deposition indicated that there had been a drum provided for their building and that he had, on occasion, burned papers in it at the request of his parents and, at least once, upon the instruction of one of defendant's employees.

The treating physician testified that on the date of the incident he examined the plaintiff and found first, second and third degree burns on the face, including burned ears; burns on the anterior and lateral surface of the chest, along the right wrist and hand and the left wrist and hand. There were no burns on his legs, to the best recollection of the treating physician.

During the course of the trial the attorneys for both parties executed a stipulation printed by the court which provided as follows:

'When jury have agreed on and signed verdict they may deliver same to bailiff and then be excused without order of court.'

'Verdict to be later brought into Court by bailiff.'

'Polling of jury waived.'

'After verdict is signed, bailiff or any juror may tell result of verdict to anyone.'

Counsel for both parties signed the stipulation which was dated February 21, 1968, and filed on that date.

At the conclusion of the case the jury retired to the jury room. After their deliberation the foreman handed the sealed verdict to the bailiff and the jurors left the jury room and disbanded. When the verdict was opened it was discovered that a not-guilty finding on behalf of the defendant had been returned and was signed by the foreman only. The jury was never requested, nor did it in fact return to the courtroom, to pronounce in open court or otherwise revise the verdict. Judgment was entered on the verdict. It is maintained that the verdict is void and ineffective because it was signed by the foreman only.

The signature of the foreman only to the verdict form, in and of itself, does not constitute reversible error. In the case of Chicago City Ry. Co. v. Cooney, 95 Ill.App. 471 (1900); aff'd 196 Ill. 466, at page 476, 63 N.E. 1029, the court considered an argument that such a verdict was insufficient, and said:

'It is argued that the written verdict returned by the jury was insufficient, in that it was signed by the foreman only, and not by all of the jurors. There is no merit in this contention. The return by the foreman in open court, in the presence of all the jurors, was sufficient. A written verdict is not essential and a return of the verdict by the foreman Ore tenus is enough. Here, the writing signed by the foreman having been announced in open court as the verdict in the presence of all the jurors, there was a sufficient return of the verdict.'

This same language was quoted with approval and as authority in the case of Patterson v. Dempsey, 2 Ill.App.2d 291, 119 N.E.2d 516 (Abst.1954).

The verdict may also be delivered orally by the foreman in the presence of the other jurors and when so read aloud to them and assented to by them it constitutes the verdict of the jury. Catholic Order of Foresters v. Fitz, 181 Ill. 206, 209, 54 N.E. 952 (1899).

This rule was recently recognized in the case of Scheck v. Evanston Cab Co., 93 Ill.App.2d 220 at page 224, 236 N.E.2d 258 at page 261 (1968) where it was stated:

'A verdict read in open court by the clerk in the presence of all the jurors is sufficient to establish validity, even though is was not signed by the jurors. Griffen v. Larned, 111 Ill. 432; Mertz v. The People, 81 Ill.App. 576. The Civil Practice Act (Ill.Rev.Stat., Ch. 110, Sec. 68(1) (1967) provides as follows: 'It is sufficient for the jury to pronounce their verdict by their foreman in open court, without reducing it to writing, if it is a general verdict. The clerk shall enter it in form, under the direction of the court.' There is no question whatever that the finding of guilty and the assessment of damages was the true verdict of the jury.'

There is a substantial distinction between the right of a jury to seal their verdict and leave it with the court and the right of litigants to poll the jury. In the early case of St. L., V. & T.H.R.R. Co. v. Faitz, 19 Ill.App. 85 (1886) a discussion of the history of jury practices in returning a sealed verdict is found at page 88 where the Court said:

'It was formerly the practice not to allow the jury to separate until their verdict was publicly announced in open court, and to compel them to agree they were frequently deprived of the necessaries of life during their deliberations; and if, before they had agreed, it became necessary for the court to leave the twon where the case was being tried, the judges were not bound to wait for them, but might carry them around the circuit in a cart, although, as Blackstone quaintly observes, they are not to be threatened or imprisoned. A much milder and more humane practice has, however, been adopted by the courts of this country. Here, it is true, we do not permit them to separate until they have agreed, but in the meantime they are furnished with all necessary refreshments, and if in civil causes they agree during a temporary adjournment of the court, they can be directed, and frequently are, to seal their verdict and return with it into open court when it again convenes. This practice is called returning a sealed verdict, * * *'

In the case of Bond v. Wood, 69 Ill. 282 (1873), it was error to discharge a jury even though counsel agreed to a sealed verdict. This is because counsel had not agreed to waive the polling of the jurors and allowing the jury to...