Illinois Bell Telephone Co. v. Purex Corp., Ltd.

• Decision Date: 12 November 1980
• Docket Number: No. 79-943,79-943
• Citation: 413 N.E.2d 106,90 Ill.App.3d 690,45 Ill.Dec. 773
• Parties: , 45 Ill.Dec. 773 ILLINOIS BELL TELEPHONE COMPANY, an Illinois Corporation, Plaintiff-Appellant, v. PUREX CORPORATION, LTD., a Foreign Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 106

413 N.E.2d 106

90 Ill.App.3d 690, 45 Ill.Dec. 773

ILLINOIS BELL TELEPHONE COMPANY, an Illinois Corporation Plaintiff-Appellant, v. PUREX CORPORATION, LTD., a Foreign Corporation, Defendant-Appellee.

No. 79-943.

Appellate Court of Illinois, First District, Third Division.

Nov. 12, 1980.

L. Bow Pritchett, Georgia J. Reithal, Chicago, for plaintiff-appellant.

Galliani & Kuzel, Ltd., Michael R. Kuzel and Philip McGuire, Chicago, for defendant-appellee.

McGILLICUDDY, Presiding Justice:

This action was brought by the Illinois Bell Telephone Company (Illinois Bell) to recover for property damage to its underground cables allegedly caused by the negligent acts of the defendant, Purex Corporation, Ltd. (Purex). After Illinois Bell presented its case, Purex rested without presenting evidence and moved for a directed verdict. The trial court directed a verdict in the defendant's favor. The plaintiff's post-trial motion was denied and the plaintiff appeals.

Three issues are presented for review: (1) whether the trial court erred in directing a verdict against Illinois Bell; (2) whether the trial court erred in ruling on certain evidentiary matters; (3) whether Illinois Bell should be granted a new trial on the question of causation only. In addition, the defendant alleges that this court lacks jurisdiction because no appeal has been taken from a final judgment.

We first address the defendant's jurisdictional argument. The defendant contends that this court lacks jurisdiction to entertain this appeal because the plaintiff's notice of appeal does not purport to be from the final judgment entered on November 2, 1978, and because the relief sought by the plaintiff was not a reversal of that judgment.

The plaintiff's notice of appeal reads as follows:

"Plaintiff, ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, hereby appeals from the Order of the Circuit Court of Cook County, Illinois, dated March 19, 1979, denying plaintiff a new trial on the issue of proximate cause only, and further, denying the plaintiff a new trial on all the issues.

"Plaintiff ... prays that the Appellate Court grant a new trial on the issue of proximate cause only and enter judgment in favor of ILLINOIS BELL on the issue of damages and the other issues of liability. Alternatively, the plaintiff prays that the Appellate Court grant a new trial on all issues, and to order such further relief with respect to trial errors as the Court deems appropriate."

The March 19, 1979 order of the Circuit Court of Cook County, referred to in the plaintiff's notice of appeal, was an order denying the plaintiff's post-trial motion for a new trial.

Appeals in civil cases, with certain exceptions not material here, may be had only from final judgments. (English v. English (1979), 72 Ill.App.3d 736, 30 Ill.Dec. 363, 393 N.E.2d 18; Ill.Rev.Stat., 1977, ch. 110A, par. 301.) An order overruling a motion for a new trial is not a final appealable order. (Robson v. Pennsylvania R. R. Co. (1949), 337 Ill.App. 557, 86 N.E.2d 403.) Therefore, the defendant argues that the plaintiff did not appeal from a final judgment and this court therefore has no jurisdiction to hear this appeal.

We reject the defendant's argument. In LeMenager v. Northwestern Barb Wire Co. (1938), 296 Ill.App. 568, 16 N.E.2d 824, a case cited by the defendant, this court lacked jurisdiction because no final judgment order had been entered prior to the filing of the notice of appeal. City of Palos Heights v. Village of Worth (1975), 29 Ill.App.3d 746, 331 N.E.2d 190, held that the appeal was properly brought from the final judgment order and the notice of appeal was not insufficient because it did not mention a subsequent order which denied the appellant's post-trial motion to vacate.

The defendant also cites Robson v. Pennsylvania which actually is support for a determination by this court that we have jurisdiction of this appeal. In Robson a final judgment had been entered on June 3, 1948. The plaintiff's subsequent motion for a new trial was denied on June 28, 1948. This denial included surplusage that directed that judgment be entered on the verdict. The plaintiff's notice of appeal recited that it was appealing from the judgment in favor of the defendant "made final by the order entered June 28, 1948, overruling the plaintiff's motion for a new trial." The defendant in that case argued that the June 28, 1948 order had the office only of overruling a motion for a new trial and thus was not a final appealable order. This court rejected the defendant's argument and held it was apparent that the plaintiff's appeal was from the judgment entered on June 3, 1948, which was the only judgment entered and not from the order denying his motion for a new trial.

We agree with the Robson decision. While the plaintiff's notice of appeal in the instant case should have specified the final judgment entered on November 2, 1978, instead of the March 19, 1979 order denying the plaintiff's motion for a new trial, we will not dismiss this appeal because of an "error of form" since there was a final judgment in the case. Luner v. Gelles (1942), 314 Ill.App. 659, 42 N.E.2d 313.

The defendant also argues that this court lacks jurisdiction to set aside the judgment entered November 2, 1978, because the only relief sought by the plaintiff in its notice of appeal was a new trial. Supreme Court Rule 303(c) (2) requires that a notice of appeal specify the judgment or part thereof appealed from and the relief sought. (Ill.Rev.Stat., 1977, ch. 110A, par. 303(c)(2).) The purpose of this requirement is to advise the successful party of the judgment complained of and the relief sought, and the absence of a strict or technical compliance with the form of the notice is not fatal. (Mooring v. Village of Glen Ellyn (1978), 57 Ill.App.3d 329, 14 Ill.Dec. 904, 373 N.E.2d 35.) The failure to include a certain prayer for relief in the notice of appeal is merely an error in form and not an error of substance and the Appellate Court does not lose its jurisdiction by technical errors of this sort where an appellee is not otherwise prejudiced. Peluso v. Singer General Precision, Inc. (1977), 47 Ill.App.3d 842, 8 Ill.Dec. 152, 365 N.E.2d 390.

Applying these principles to the case at bar, we hold that the plaintiff's notice of appeal contained an error of form rather than of substance and that the defendant was not prejudiced thereby. The defendant was clearly informed that the plaintiff was seeking a new trial and, inferentially, a vacation of the prior judgment since a new trial could not be granted unless the final judgment is also set aside. Therefore, we reject the defendant's contentions that this appeal must be dismissed.

At trial Illinois Bell sought to prove that the defendant was negligent in permitting naphtha solvents and/or similar chemicals to escape its premises and to enter Illinois Bell's manhole and duct system. Illinois Bell argued that the seepage caused extensive damage to certain cables that eventually had to be replaced at an alleged cost of $32,964.05. The damaged underground cables were located in a duct system that ran parallel to Elston Avenue along the east curb just north of a manhole at 2241 North Elston Avenue. This manhole was adjacent to a yachting store and boat yard on the east side of Elston and was directly across the street from the Purex storage yard. A tannery and an ink manufacturing plant were located to the south of the boat yard.

A duct is a rectangular piece of concrete or plastic material, several feet long with holes running through its length to allow for telephone cables to be pulled through. The ducts are laid in manholes which are not watertight. Seepage occurs through manhole covers and natural seepage of City water and sewage exists in the manholes. The telephone cables consist of copper conductors individually insulated and enclosed in aluminum or steel jackets. The seams of each metal jacket are soldered together but pinholes remain in the seams through which water and other contaminants could penetrate to the conductors. The pinholes are sealed by an asphalt flooding compound. An exterior sheath of polyethylene is installed over the flooding compound. To further protect the cable wires against water and contaminants, the cables are pressurized.

In September 1972 a problem was reported in Illinois Bell's cables on Elston Avenue. Dennis Gonka, a cable splicer, in 1972, isolated the problem. He opened the manhole, found it full of water and noticed an odor similar in smell to turpentine or paint thinner. The water was coated with a white, tan or beige jellylike substance as were the cables and walls and floor of the manhole. Gonka testified at trial that, in his ten years experience as a cable splicer, he had on three or four occasions observed the effect of petroleum-base products on polyethylene jacketed cables. He stated the petroleum products did not directly damage the cables; rather, the polyethylene sheath became softened so that water could permeate and thereby damage the cables.

Thomas Lykowski, Illinois Bell's cable splicing foreman in 1972, testified that he too observed the tan, jellylike substance with a slight petroleum odor, on the cables, floor and walls of the manhole and ducts running parallel to Elston. The substance was also present in two ducts running south or west from the manhole to the driveway at the Purex loading area. These two ducts were not in use and had been sealed with concrete caps at both ends. Lykowski observed a similar jellylike substance in the Purex storage yard (inside the retaining wall), on its delivery driveway and along the sidewalk, curb and gutter. He did not see that substance flow from the Purex property to Illinois Bell's manhole and noted that the substance would have had to flow up the concave surface of the street to reach the manhole. Lykowski said the substance was not visibly present on the...