Kamienski v. Bluebird Air Serv., Inc.

Decision Date19 March 1945
Docket NumberNo. 27987.,27987.
Citation59 N.E.2d 853,389 Ill. 462
CourtIllinois Supreme Court


Error to Third Division Appellate Court, First District, on Appeal from Circuit Court, Cook County; Joseph E. Daily, Judge.

Action by Henry C. Kamienski against Bluebird Air Service, Incorporated, for injuries suffered in airplane accident. To review a judgment of the Appellate Court, 321 Ill.App. 340, 53 N.E.2d 131, affirming a judgment for plaintiff, defendant brings error.

Writ of error dismissed.

Ekern, Meyers & Matthias and Sears, O'Brien & Streit, all of Chicago (Barnabas F. Sears, Donald L. Thompson, and William G. Chorn, all of Chicago, of counsel), for plaintiff in error.

Adams, Moses & Culver, of Chicago, for defendant in error.

STONE, Justice.

Defendant, Bluebird Air Service, Inc., has sued out of this court a writ of error to review the judgment of the Appellate Court, First District, which affirmed a judgment rendered against it in an airplane accident. A motion has been filed by the plaintiff, Kamienski, to dismiss the writ of error for want of a right in defendant to have a review of the case by that means. Defendant contends that the action of the Appellate Court in affirming the judgment of the trial court deprived defendant of due process of law and violated the constitutional provision which vests only appellate jurisdiction in the Appellate Court.

The complaint in the trial court consisted of two counts, the first of which charged negligent operation of the plane by the pilot, and the second alleged violation of certain rules and regulations of the Civil Aeronautics Authority of the Department of Commerce of the United States relative to testing the engine prior to the takeoff, and also alleged the failure to observe certain local field traffic rules.

At the close of plaintiff's evidence, the trial court overruled defendant's motion for a directed verdict on count one and sustained that motion as to count two and dismissed that count. A trial was had and a verdict rendered, and as a result of the proceedings, judgment in the sum of $3300 was entered.

On the trial of the cause, though the plaintiff introduced no evidence tending to support the second count, and although that count was dismissed at the close of plaintiff's case, defendant, nevertheless, introduced substantial evidence tending to establish that it had complied with the Federal regulations with reference to the use of airplanes.

The Appellate Court, on review, considered the entire evidence before the trial court and affirmed the judgment. Defendant says that in doing this it exercised original jurisdiction since the second count was dismissed, and the complaint is made that the Appellate Court in its opinion stated that by reason of the evidence offered by the defendant, it considered that the second count had been reinstated. Defendant also says that as judgment was entered on count one and no cross errors were assigned from the order dismissing count two, the Appellate Court was limited in its jurisdiction to review the record to determine the correctness of the judgment as based on count one.

On an appeal to the Appellate Court, that court has jurisdiction to review the record before it and determine whether the judgment was justified. In this case, the Appellate Court did review that judgment and entered an affirmance on the record made. While the Appellate Court...

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    • United States
    • Illinois Supreme Court
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    ... ... Temple, Chicago, of counsel), for Archer Iron Works, Inc ...         Hinshaw, Culbertson, Moelmann & Hoban, Chicago ... Gould v. Gould, 408 Ill. 526, 97 N.E.2d 826; Kamienski ... Page 773 ... v. Bluebird Air Service, Inc., 389 Ill. 462, 59 ... ...
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  • Ness v. West Coast Airlines, Inc.
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    ...§ 51; Cudney v. Braniff Airways (Mo.) 300 S.W.2d 412, 73 A.L.R.2d 371, Anno. 379 (1957); Kamienski v. Bluebird Air Service, 321 Ill.App. 340, 53 N.E.2d 131 (1944), 389 Ill. 462, 59 N.E.2d 853 (1945); Kasanof v. Embry-Riddle Co., 157 Fla. 677, 26 So.2d 889 (1946); Allison v. Standard Air Lin......
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