Hartgraves v. Don Cartage Co.

• Decision Date: 24 June 1976
• Docket Number: No. 47505,47505
• Citation: 63 Ill.2d 425,348 N.E.2d 457
• Parties: Virgie H. HARTGRAVES, Appellant, v. DON CARTAGE COMPANY, Appellee. . Modified Opinion Filed
• Court: Illinois Supreme Court

Page 457

348 N.E.2d 457

63 Ill.2d 425

Virgie H. HARTGRAVES, Appellant, v. DON CARTAGE COMPANY, Appellee.

No. 47505.

Supreme Court of Illinois.

Modified Opinion Filed June 24, 1976.

John G. Phillips, Ltd., and Joseph M. Fasano, Ltd., Chicago (Sidney Z. Karasik, Chicago, of counsel), for appellant.

McKenna, Storer, Rowe, White & Farrug, Chicago (Robert S. Soderstrom, Chicago, of counsel), for appellee.

RYAN, Justice.

Plaintiff, Virgle H. Hartgraves, sued in the circuit court of Cook County for damages resulting from the negligence of defendant, Don Cartage Company. The jury rendered a verdict for plaintiff and awarded $60,000 in damages. Defendant appealed and the appellate court reversed and remanded (27 Ill.App.3d 298, 326 N.E.2d 461). We granted plaintiff's petition for leave to appeal under Rule 315 (58 Ill.2d R. 315). We affirm the appellate court.

During the course of the trial, one of the 12 jurors was injured and was unable to continue to serve on the jury. There had been no pretrial stipulation to proceed with less than 12 jurors if necessary. An in-chambers, off-the-record discussion was held, after which in open court defendant's counsel moved for a mistrial. The motion was denied. Defendant's counsel raised the denial of his motion for a mistrial in his post-trial motion, which the court, following a hearing, denied.

Prior to the hearing on the post-trial motion, plaintiff's counsel submitted an affidavit in opposition to defendant's motion. The affidavit stated that during the inchambers discussion, defense counsel had stated that for the record he would formally object to proceeding with less than 12 jurors but requested that the judge overrule his objection, and indicated that he was willing to proceed with 11 jurors. Defendant's counsel submitted an affidavit denying that he had consented to proceeding with less than 12 jurors. At the hearing on the post-trial motion, some six months after the trial, the judge stated that he had a clear recollection of the in-chambers discussion. He stated that defendant's counsel had suggested that he overrule the motion for mistrial and agreed that the trial could proceed. The defendant's post-trial motion was denied.

The right to trial by jury is guaranteed by the 1970 Illinois Constitution (Ill.Const., art. I, sec. 13), and this court has long determined that a jury is comprised of 12 members. (People ex rel. Denny v. Traeger (1939), 372 Ill. 11, 14, 22 N.E.2d 679; People v. Kelly (1931),347 Ill. 221, 232, 179 N.E. 898; Liska v. Chicago Railways Co. (1925), 318 Ill. 570, 583, 149 N.E. 469; Sinopoli v. Chicago Railways Co. (1925), 316 Ill. 609, 619, 147 N.E. 487.) The parties can, however, consent in open court to a unanimous verdict of a jury of less than 12. Povlich v. Glodich (1924), 311 Ill. 149, 152, 142 N.E. 466; Rehm v. Halverson (1902),197 Ill. 378, 388, 64 N.E. 388; People v. Chandler (1972), 7 Ill.App.3d 949, 954, 289 N.E.2d 67.

At the time judgment was entered, the record was clear that defendant had not waived his right to a jury of 12. Plaintiff contends, however, that the trial judge's recollections became part of the record and that the record thus showed defendant had waived its right to a jury of 12. We disagree.

Generally, 'an amendment of the record cannot be made by oral testimony, or from the recollection of the trial judge himself, but must be proved by the production of some note or memorandum from the record or Quasi records of the court, or by the judge's minutes, or by the papers on file in the cause.' (Pinkstaff v. Pennsylvania R.R. Co. (1960), 20 Ill.2d 193, 202, 170 N.E.2d 139, 144 citing People v. Miller (1936), 365 Ill. 56, 58, 5 N.E.2d 458.) '(A)n amendment of a record cannot be made either from the memory of a witness, from the recollection of the judge himself, or by affidavit, but the record must show the basis upon which the amendment or correction is made.' People v. Townsend (1972), 5 Ill.App.3d 924, 926, 284 N.E.2d 414, 416, citing People v. Okulczyk (1951), 410 Ill. 115, 101 N.E.2d 529, and People v. Miller (1936), 365 Ill. 56, 5 N.E.2d 458. See In re Application of County Collector (1974), 18 Ill.App.3d 272, 309 N.E.2d 722.

Here it is uncontroverted that no documents, minutes, records, or quasi-records existed, and that the judge relied solely on his 'clear memory' in making the 'correction' of the record.

Appellant argues that Supreme Court Rule 323(c) (58 Ill.2d R. 323(c)) supports his contention that the trial court's action was permissible. That rule provides:

'If no verbatim transcript of the evidence of proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. * * * The court, holding hearings if necessary, shall promptly settle, certify, and order filed an accurate report of proceedings.'

In the case at bar, however, there is in fact a 'verbatim transcript of the * * * proceedings.' Consequently, Rule 323(c) is not directly applicable.

Appellant also argues that Supreme Court Rule 329 (58 Ill.2d R. 329) supports his position. That rule states:

'The record on appeal shall be taken as true and correct unless shown to be otherwise * * *. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court * * * Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth.'

Here there is no disagreement on whether the record accurately discloses what occurred in court. Nothing that was stated at trial has been omitted or improperly transcribed. Appellant does not argue that the written record is incorrect, but rather that it is somehow incomplete.

The 'material omission'--the supposed discussion between the parties and the trial judge--was never recited in open court and is no more than an off-the-record discussion. This discussion, whatever its contents, was never intended to be a part of the record of this case. Almost immediately following the in-chambers discussion the judge and attorneys entered the courtroom and defendant's counsel moved, on the record, for a mistrial. The motion was argued at length. No reference was made to the alleged in-chambers agreement which would have rendered the proceedings that followed in court a meaningless charade. If it were to be considered part of the record it was incumbent upon the judge or plaintiff's counsel to incorporate its contents or some reference to it in the record.

We find it helpful to quote at length from the proceedings. The transcript for October 16, 1972, shows that court convened at 10 a.m. and states:

MR. PERRIN (Defendant's counsel): I have been advised by the bailiff that juror Mary Kronan over the weekend was involved in an accident at a shopping center involving a runaway grocery cart in which she according to the bailiff crushed her knee. She is presently in the hospital, and I wasn't advised which hospital this was. And that she has been examined by an orthopedic surgeon, I understand, and there is a possibility that the knee will require an operation in order to put it back into its original condition.

And, accordingly, I understand she is unavailable.

Now there was in this case no stipulation with a jury of less than twelve members. We, on behalf of Don Cartage Company, demanded a jury of twelve members, and I would object to proceeding without twelve jurors that we picked and chose in this case.

I would now move at this time for a mistrial in this cause on the ground that we now have eleven by process of Mrs. Kronan being in the hospital and being unable to sit throughout the remainder of this case. Accordingly I move for a mistrial and ask that we start over again.

MR. FASANO (Plaintiff's counsel): Your Honor, we have tried this case for four days last week and this is...