Koltz v. Jahaaske

• Decision Date: 14 January 1942
• Docket Number: Gen. No. 9718.
• Citation: 312 Ill.App. 623,38 N.E.2d 973
• Parties: KOLTZ ET AL. v. JAHAASKE ET AL.
• Court: United States Appellate Court of Illinois

312 Ill.App. 623

38 N.E.2d 973

KOLTZ ET AL.

v.JAHAASKE ET AL.

Gen. No. 9718.

Appellate Court of Illinois, Second District.

Jan. 14, 1942.

Appeal from Circuit Court, DuPage County; Win G. Knoch, Judge.

Action by George C. Koltz and another against Harold Jahaaske and another for personal injuries sustained in an automobile accident, wherein the jury returned four verdicts of guilty. From adverse judgments, defendant Lawrence J. Reher appeals.

Judgments, as rendered by trial court upon verdicts against appellant, reversed. Charles H. Borden, of Chicago, for appellant.

Rathje & Woodward, of Wheaton, and Frank R. Sejnost, of Berwyn, for appellees.

HUFFMAN, Presiding Justice.

Mr. and Mrs. Koltz (appellees) were riding in their automobile, then being driven by Mr. Koltz. A collision occurred between their car and that of defendant, Harold Jahaaske, then being operated by said defendant. Suit was brought by appellees against Jahaaske and Lawrence J. Reher to recover for personal injuries sustained. It was alleged that defendant Reher was engaged in the business of selling intoxicating liquors; that he procured the intoxication of the defendant Jahaaske; and that in consequence of such intoxication, the collision occurred with the resulting damages to appellees.

The defendants were sued as joint tort]feasors. The jury returned four verdicts of guilty. One verdict was returned in favor of appellee, Louise Koltz, and against defendant Jahaaske for $15,000; one verdict was returned in favor of appellee, George C. Koltz, and against defendant Jahaaske for $4,000; one verdict was returned in favor of appellee, Louise Koltz, and against defendant Reher for $500; and one verdict was returned in favor of appellee, George C. Koltz, and against defendant Reher for $500. The above verdicts were received on February 21, 1941. Two months after the return of such verdicts, and the discharge of the jury, and on April 24, 1941, appellees each entered a remittitur upon their verdict against defendant Reher in the sum of $500, and filed their motion that the court amend such verdicts to read $15,000, for appellee, Louise Koltz, and $4,000, for appellee, George Koltz. Upon such motion, the court so amended the verdicts, over the objections of defendant Reher, and rendered judgments accordingly. It is from this action of the court that Reher (appellant) has prosecuted this appeal. The defendant Jahaaske, brings no appeal.

We have here for consideration a case where a jury has returned several guilty verdicts against defendants who were sued as joint tort]feasors, and by such verdicts assessing several damages. This is not a common situation. However, the point was before the Supreme Court of this state in the case of St. Louis, Alton, etc., R. R. Co. v. South, 43 Ill. 176, 182,92 Am.Dec. 103. The question where several damages are given by a jury against joint tort]feasors is also considered in the case of Nashville Ry. Co. v. Trawick, 118 Tenn. 273, 99 S.W. 695, 697, 10 L.R.A.,N.S., 191, 121 Am.St.Rep. 996, on p. 1000, 12 Ann.Cas. 532, where with reference to such question, it is stated, “The great weight of authority, holds that the plaintiff may select which one of the defendants he will take judgment against, and may enter a nolle prosequi as to the others, and have his judgment against this one in the amount the jury awarded against him, and this cures the irregularity in the verdict awarding several damages.” A collection of authorities and cases cited therein appear in support of this rule, including the case of St. Louis, etc., R. R. Co. v. South, supra. To the same effect are the cases of Holley v. Mix, 3 Wend. N.Y., 350, 20 Am.Dec. 702, 705 (cited with approval in Yeazel v. Alexander, 58 Ill. 254, 264); and Warren v. Westrup, 44 Minn. 237, 46 N.W. 347, 20 Am.St.Rep. 578. Most of the foregoing cases cite 1 Tidd's Practice, 682. The text]writer there states: “So, in trespass against several defendants, where the jury by mistake have assessed several damages, the plaintiff may cure it by entering a nolle prosequi as to one of the defendants and taking judgment against the other.” The above rule is based upon the doctrine that a tort action is several as well as joint, and since the plaintiff might originally have commenced his action against only one, so, after verdict, he may elect to take his damages against either of them; and where several damages are given, the plaintiff may cure the irregularity by entering a nolle prosequi against all except such as he wishes to take judgment against.

Appellees urge that since the jury found each defendant guilty of negligence, the trial court in amending the verdicts against appellant by raising the...