Maher v. New York, C. & St. L.R. Co.

• Citation: 8 N.E.2d 512,290 Ill.App. 267
• Decision Date: 24 May 1937
• Docket Number: Gen. No. 39375.
• Court: United States Appellate Court of Illinois
• Parties: MAHER v. NEW YORK, C. & ST. L. R. CO.

290 Ill.App. 267

8 N.E.2d 512

MAHER

v.NEW YORK, C. & ST. L. R. CO.

Gen. No. 39375.

Appellate Court of Illinois, First District, First Division.

May 10, 1937.

Rehearing Denied May 24, 1937.

Appeal from Superior Court, Cook County; Peter H. Schwaba, Judge.

Action by William E. Maher against the New York, Chicago & St. Louis Railroad Company, wherein defendant filed a motion in the nature of a petition for a writ of error coram nobis. From an order allowing plaintiff's motion in the nature of a special demurrer to strike defendant's motion, defendant appeals, and plaintiff moves to dismiss the appeal.

Motion to dismiss the appeal denied; order affirmed. Winston, Strawn & Shaw, Silas H. Strawn, Harold A. Smith, and Douglas C. Moir, all of Chicago, for appellant.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.

O'CONNOR, Justice.

March 18, 1936, the New York, Chicago & St. Louis Railroad Company, a corporation, against whom plaintiff had a judgment for $40,000 for personal injuries, filed its motion in the nature of a petition for a writ of error coram nobis under the provisions of section 72 of the Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 196), praying that judgment be vacated and that it be granted a new trial. Plaintiff filed a motion in the nature of a special demurrer to strike defendant's motion. The motion was allowed, and defendant appeals.

In defendant's petition it was alleged that plaintiff brought his suit to recover damages for personal injuries in April, 1932; that a trial of the case in April, 1934, resulted in a verdict and judgment in plaintiff's favor for $24,600; that on appeal to this court the judgment was reversed and the cause remanded for a new trial (280 Ill.App. 222); that September 23, 1935, a jury was sworn and the second trial begun; a verdict was returned in plaintiff's favor for $50,000, from which plaintiff remitted $10,000, and on October 30, 1935, judgment was entered in favor of plaintiff for $40,000. While defendant's appeal to this court from that judgment was pending, defendant on February 13, 1936, discovered that the foreman of the jury had made misstatements and had not truthfully and fully answered questions put to him on his voir dire examination, in that he was asked by counsel for defendant whether he or any member of his family had ever been involved in a personal injury case or whether he had ever been sued in a personal injury case, which questions were answered in the negative; that thereupon the prospective juror was examined by counsel for plaintiff, who asked, “Have you ever had any experience that might prejudice you against * * * the plaintiff?” and “Nobody ever sued you for damages?” and the answers were: “No, sir.”

Defendant further alleges in its petition that such answers were false in that: (a) The juror on March 16, 1923, was driving a truck on a certain street in Chicago when Hugo Derrick was run over by the truck and killed; (b) April 8, 1932, a son of the juror, who then resided in the same building with his father, was sued for $25,000 for personal injuries alleged to have occurred October 21, 1931, which suit was dismissed June 7, 1933; and (c) on July 1, 1913, the juror “while employed as a brick tosser on the premises of the Baltimore & Ohio Railroad company claimed that he fell over a bolt sticking up from the bottom of one of the cars and sustained two broken ribs.” And it is further alleged that neither the petitioner nor his attorney learned of the falsity of the answers until February 13, 1936.

It further appears that on June 29, 1936, this court [286 Ill.App. 609, 3 N.E.(2d) 349] affirmed the judgment of $40,000 upon the filing of a remittitur of $5,000, and thereafter defendant's petition for leave to appeal to the Supreme court was denied, and on oral argument it was admitted by counsel for defendant that the Supreme Court of the United States had denied defendant's petition for a writ of certiorari. (57 S.Ct. 508, 81 L.Ed. ---.) November 14, 1936, the order striking defendant's petition was entered.

At common law, if a judgment was erroneous in a matter of fact only, the party against whom the error was committed was entitled to have the judgment reversed in the same court on a writ of error coram nobis. Consolidated Coal Co. v. Oeltjen, 189 Ill. 85, 59 N.E. 600. The writ was allowed for the purpose of revoking the judgment for some error of fact not appearing on the face of the record. People v. Schuedter, 336 Ill. 244, 168 N.E. 323.

In Chapman v. No. American Life Ins. Co., 292 Ill. 179, at page 185, 126 N.E. 732, 736, the court said: “At common law the writ of error coram nobis could be sued out of the same court when a judgment at law was rendered to reverse the judgment, and before the same judge who rendered the judgment, for an error of fact that might be brought to the knowledge of the court that would be sufficient of itself to defeat the judgment. Such error of fact which may be assigned under such writ, or by motion under section 89 [now section 72 of the act, Smith-Hurd Ill.Stats. c. 110, § 196] of our Practice Act [Smith-Hurd Ill.Stats. c. 110 Appendix, § 89], which is controlled by similar rules, must be some fact unknown to the court at the time judgment was rendered, as well as one which would have precluded the rendition of the judgment. Cramer v. Ill. Commercial Men's Ass'n, 260 Ill. 516, 103 N.E. 459. Familiar facts of the character involved in this suit and which are sufficient to cause a judgment to be reversed by writ of error coram nobis or motion under the statute, when such facts are unknown to the judge at the time of the judgment, are that the nominal defendant was dead, an infant without guardian, a feme covert, or a person insane at the time of the trial.”

Counsel for plaintiff say that the appeal should be dismissed because “a writ of error coram nobis will not lie after the affirmance of the original judgment” by a court of review, and in support of this cite Partlow v. State, 194 Ind. 172, 141 N.E. 513, 30 A.L.R. 1414;Boyd v. Smyth, 200 Iowa 687, 205 N.W. 522, 43 A.L.R. 1381, and cases from other jurisdictions which sustain counsels' contention. No Illinois case is cited, but in People v. McArthur, 283 Ill.App. 467, we passed upon the propriety of the vacating by the criminal court of a judgment of conviction based upon a motion pursuant to the provisions of section 72 of the Civil Practice Act, which had theretofore been affirmed by the Supreme Court (People v. McArthur, 359 Ill. 121, 194 N.E. 230), but the point now made was not there considered. Section 72 of our Civil Practice Act (Smith-Hurd Ill.Stats. c. 110, § 196), which is the authority for the institution of the instant proceeding, provides: “The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case.” We agree with counsel for defendant when they say: “It is to be observed that the statute does not say that the right to this relief is not available in the event there has been an appeal in the principal proceeding. If that had been the intention of the legislators, that limitation on the right to the writ would have been supplied.” The motion to dismiss the appeal is denied.

Counsel for petitioner say that, “The courts of last resort of numerous states have repeatedly held that parties to a lawsuit are entitled to truthful answers from prospective jurors on their voir dire; and that failure to disclose material facts in answer to pertinent questions by such a juror entitles the party misled to a new trial,” and in support of this cite Cleveland Ry. Co. v. Myers, 50 Ohio App. 224, 197 N.E. 803;Pearcy v. Michigan Mutual Life Insurance Co., 111 Ind. 59, 12 N.E. 98, 60 Am.Rep. 673;Lindemann v. San Joaquin Cotton Oil Co., 5 Cal.(2d) 480, 55 P.(2d) 870;Knickerbocker v. Erie R. Co., 247 App.Div. 495, 286 N.Y.S. 1001;Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993, and other cases.

In the Myers Case, in the selection of the jury the court addressed some general remarks to the jurors and inquired whether they had any case in court, and counsel for the railway company also asked the jurors if any of their relatives ever had a claim for personal injuries. All the members of the panel remained silent. There was a verdict for plaintiff, and on a motion for a new trial it appeared that one of the jurors had, prior to the time of the trial, been in an automobile accident in which he suffered a broken neck. The motion for a new trial was overruled, but the judgment was reversed by the Court of Appeals of Ohio. The court there said (50 Ohio App. 224, 197 N.E. 803, at page 805): “If the true facts are not disclosed in response to proper inquiries on voir dire examination, no party ever could exercise his right to challenge upon suspicion of prejudice. A party has a right to have all proper and pertinent questions on voir dire examination answered truthfully. * * * If a truthful answer is not given by the juror, there is no way that a party may determine facts upon which to base a challenge upon suspicion of prejudice, or even peremptorily.”

In the Pearcy Case, 111 Ind. 59, 12 N.E. 98, 60 Am.Rep. 673, an action was brought to recover on a life insurance policy. A new trial was asked for the reason that one of the jurors on his voir dire was asked whether he held a policy of insurance issued by the defendant. He answered in the negative, the truth being that he had taken out such policy for the benefit of his wife. Plaintiff having no knowledge of this fact, the circuit court of Indiana held that the juror was guilty of such concealment and misconduct as to entitle the plaintiff to a new trial....