Jenisek v. Riggs

• Decision Date: 18 November 1942
• Docket Number: No. 26923.,26923.
• Parties: JENISEK v. RIGGS.
• Court: Illinois Supreme Court

381 Ill. 290

44 N.E.2d 902

JENISEK

v.RIGGS.

No. 26923.

Supreme Court of Illinois.

Nov. 18, 1942.

Action by V. R. Jenisek against Russell Riggs for injuries and property damage suffered in automobile collision. From a judgment for plaintiff, defendant appeals.

Cause transferred to Appellate Court.Appeal from Circuit Court, Madison County; Alfred D. Riess, judge.

Leahy, Walther & Hecker, of St. Louis, Mo., and Warnock, Williamson & Burroughs, of Edwardsville, for appellant.

Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellee.

WILSON, Justice.

The plaintiff, V. R. Jenisek, brought an action in the circuit court of Madison county against the defendant, Russell Riggs, to recover damages for personal injuries and property damage sustained August 29, 1940, about 5:00 o'clock in the morning, in a collision on State route 159, approximately two miles south of the village of Roxana, when the automobile driven by plaintiff struck the rear end of defendant's automobile truck. The trial resulted in a verdict of $5,000 in plaintiff's favor. A motion by defendant for a new trial was allowed. By his amended complaint, plaintiff charged defendant with (1) a violation of section 88 of the Motor Vehicle act of 1935, in stopping and parking a truck used for carrying freight at or near the center of the highway; (2) a violation of the same statutory provision in parking and stopping the truck, leaving less than 20 feet of unobstructed highway opposite the standing vehicle; (3) a violation of section 121 in failing to place lights, flares or other signals about the truck to warn of its presence; (4) a violation of section 51(a) (Ill.Rev.Stat.1941, chap. 95 1/2, par. 148(a)) which ordains: ‘No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law,’ and (5) general negligence. The amended complaint differs from the original complaint only in the additional charge of a violation of section 51 (a). Defendant's answer denied generally the essential allegations of plaintiff's pleading. At the conclusion of plaintiff's evidence, and again at the close of all the evidence, defendant made motions to instruct the jury to find him not guilty. He did not, however, at any time during the progress of the trial seek to restrict the consideration of the jury to any one or more of the five charges of the amended complaint. The jury returned a general verdict finding defendant guilty and awarding plaintiff damages in the amount of $5,000. March 27, 1942, the defendant made a motion for judgment non obstance veredicto and, in the alternative, a motion for new trial. Eighteen grounds are specified in support of the written motion for a new trial. May 8, the motions were argued and taken under advisement. Thereafter, on May 19, defendant filed a motion seeking leave to amend his motion for a new trial by adding a nineteenth paragraph assailing the constitutionality of section 51(a) of the Motor Vehicle act on the ground it transcends section 1 of article XIV of the Federal constitution and section 2 of article II of our constitution, Smith-Hurd Stats., in six enumerated particulars. Defendant's motions for judgment non obstante veredicto and for a new trial were denied. In denying his motion to amend the motion for a new trial, the trial court specifically pointed out that the proposed amendment attempted to present a question as to the validity of the statute not raised in the pleadings, not argued, not set forth in any instructions, nor in the motion for a new trial and, indeed, not asserted at any time during the trial. Additional reasons assigned were that defendant had waived the validity of section 51(a) and that his motion did not affect all counts of the amended complaint. Judgment was rendered on the verdict. Asserting that a constitutional question is raised and involved on the record, defendant prosecutes a direct appeal.

Defendant contends that he was entitled to amend his motion for new trial in order to raise the constitutional validity of section 51(a) of the Motor Vehicle act, and that, consequently, we have jurisdiction of this appeal. Before this court assumes jurisdiction of an appeal on the ground that a constitutional question is involved, it must appear from the record that a fairly debatable constitutional question was urged in the trial court, the ruling on it must be preserved in the record for review, and error must be assigned upon it here. Hillmer v. Chicago Bank of Commerce, 378 Ill. 449, 38 N.E.2d 751;Grutzius v. Armour & Co., 377 Ill. 447, 36 N.E.2d 707. The validity of a statute is involved, so as to confer jurisdiction by direct appeal only where its constitutionality was...