Merlo v. Pub. Serv. Co. of Northern Illinois

• Decision Date: 13 January 1943
• Docket Number: No. 26664.,26664.
• Citation: 381 Ill. 300,45 N.E.2d 665
• Parties: MERLO et al. v. PUBLIC SERVICE CO. OF NORTHERN ILLINOIS et al.
• Court: Illinois Supreme Court

381 Ill. 300

45 N.E.2d 665

MERLO et al.

v.PUBLIC SERVICE CO. OF NORTHERN ILLINOIS et al.

No. 26664.

Supreme Court of Illinois.

Nov. 17, 1942.

Rehearing Denied Jan. 13, 1943.

Error to Appellate Court, First Division, on Appeal from Circuit Court, Cook County; William J. Wimbiscus, Judge.

Death actions by Marie Merlo, administratrix of the estate of Caesar Merlo, deceased, and by Frances Salvato, administratrix of the estate of John Salvato, deceased, against the Public Service Company of Northern Illinois and the Charles M. Porter Company. From a judgment for the plaintiffs, the Charles M. Porter Company appealed to the Appellate Court, and from a judgment for the Public Service Company of Northern Illinois notwithstanding the verdict for plaintiffs, the plaintiffs filed a cross-appeal. To review judgment of the Appellate Court, 313 Ill.App. 57, 38 N.E.2d 986, affirming the judgment against the Charles M. Porter Company and reversing judgment for the Public Service Company of Northern Illinois and remanding case, with directions, the Public Service Company of Northern Illinois brings error.

Affirmed in part and reversed in part.Gardner, Morrow, Fowler & Merrick and Kent J. Owens, all of Chicago (Walter M. Fowler, of Chicago, of counsel), for Public Service Co. of Northern Illinois.

Cassels, Potter & Bentley, of Chicago (Ralph F. Potter, L. H. Vogel, George C. Bunge, and H. G. Marshall, all of Chicago, of counsel), for Charles M. Porter Co.

Barasa, Rinella & Barasa, of Chicago (Joseph Barbera and Harry G. Fins, both of Chicago, of counsel), for defendants in error.

SMITH, Justice.

This case was brought in the circuit court of Cook county by Marie Merlo, as administratrix of the estate of Caesar Merlo, deceased, and Frances Salvato, as administratrix of the estate of John Salvato, deceased, as plaintiffs. Public Service Company of Northern Illinois and Charles M. Porter Company were named as defendants. The suit was under the Injuries Act to recover damages for the deaths of the respective husbands of plaintiffs. For convenience we will refer to the parties in this opinion as plaintiffs and defendants the same as they were designated in the trial court.

Plaintiffs filed one complaint consisting of two counts. The injuries alleged to have caused the deaths arose out of the same accident. The first count of the complaint sets forth the claim of Marie Merlo, as administratrix, and the second count the claim of Frances Salvato as administratrix. Each count alleges distinct but separate acts of negligence against each defendant. Following the separate charges of negligence against each defendant in both counts, it is alleged that the injuries were sustained ‘by reason of the negligence and carelessness of said defendants.’

The deceased husbands of plaintiffs were electrocuted April 15, 1936, while engaged as W. P. A. workers in the construction of a sewer in the village of Maywood. Defendant Charles M. Porter Company was the owner of a drag-line machine, operated by Leo Wagner, which was used in excavating for the sewer. Defendant Public Service Company of Northern Illinois maintained an electric distribution line in the parkway between the sidewalk and the curb of Oak street near its intersection with Tenth avenue in the village, where the fatal injuries occurred. This line was used for the transmission of electric current furnished by said defendant to the village of Maywood and its inhabitants. The machine belonging to the Charles M. Porter Company was operated in such manner that the crane or boom came in contact with the distribution line of the Public Service Company with the result that an electric current of high voltage was conducted through a steel cable attached to the boom. Plaintiffs' intestates lost their lives by coming in contact with this cable.

The jury found both defendants guilty and assessed the damages of Frances Salvatoat $4000 and of Marie Merlo at $2500. At the close of plaintiffs' evidence both defendants moved for directed verdicts of not guilty. These motions were denied. The motions were renewed at the close of all the evidence. The court reserved a ruling on said motions and submitted the case to the jury. After the verdicts were returned both defendants filed motions for judgment notwithstanding the verdicts. The motion of defendant Public Service Company of Northern Illinois was in the alternative for a new trial in the event motion for judgment was denied. This motion for new trial was afterwards and before judgment, by leave of court, withdrawn. The court entered judgment on the verdicts against defendant Charles M. Porter Company, but set aside the verdicts as to Public Service Company of Northern Illinois and entered judgment in its favor, notwithstanding the verdicts. Charles M. Porter Company appealed from said judgment against it to the Appellate Court for the First District. The plaintiffs prosecuted a cross-appeal from the judgment entered notwithstanding the verdicts in favor of the Public Service Company. The Appellate Court, 313 Ill.App. 57, 38 N.E.2d 986, affirmed the judgment against Charles M. Porter Company and reversed the judgment notwithstanding the verdicts in favor of Public Service Company of Northern Illinois. As to that defendant the cause was remanded with directions to the trial court to enter judgment on the verdict. Said last-mentioned defendant has sued out a writ of error to review the judgment of the Appellate Court. It contends that paragraphs 1(e) and 1(f) of section 92 of the Civil Practice Act (Ill.Rev.Stat.1941, chap. 110, par. 216,) and paragraph 3(c) of section 68 of said Civil Practice Act (Ill.Rev.Stat.1941, chap. 110, par. 192,) which it claims purport to give the Appellate Court power to enter the judgment against said Public Service Company remanding the cause with directions to enter judgment on the verdicts, are unconstitutional. It further contends that the constitutional question arose for the first time in the Appellate Court, and consequently this court has jurisdiction to review that question only on writ of error. The defendant Charles M. Porter Company brought the case here by petition for leave to appeal, which has been allowed. The petition for leave to appeal was, on motion, ordered to stand as an answer to the writ of error.

The defendant Public Service Company argues that the cross-appeal of plaintiffs presented to the Appellate Court no questions of fact; that the only question presented to that court was the question of law as to whether or not the trial court erred in entering judgment notwithstanding the verdicts; that the Appellate Court, in passing upon the question and reversing the judgment of the trial court, properly exercised its appellate jurisdiction. It is further argued that when it gave directions to the trial court to enter judgment on the verdicts against said defendant, it in effect and of necessity, considered and ruled upon matters not before it for consideration. It is urged that the Appellate Court in directing the trial court to enter judgment on the verdicts attempted to exercise original jurisdiction in violation of the constitution; that by directing final judgment it settled all questions, both of law and of fact, against said defendant; that the defendant was thereby deprived of the right to have a motion for a new trial passed upon by the trial court; that the right to have the trial court pass on a motion for a new trial is a necessary and indispensable element of due process of law and the right of trial by jury guaranteed by the constitution; that paragraphs 1(e) and 1(f) of section 92 of the Civil Practice Act, which provide that a reviewing court on appeal may, in its discretion, and on such terms as it deems just, draw inferences of fact and give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief as the case may require, purport to authorize the judgment entered by the Appellate Court; that said paragraphs of the statute constitute an attempt to confer original jurisdiction on appellate courts in violation of the constitution; that this court cannot hold the aforesaid directions of the Appellate Court to be error, or cannot affirm said judgment of the Appellate Court without passing upon the validity of these paragraphs of said statute; and therefore a constitutional question is directly involved. Said defendant also assigns as error, but does not argue, the alleged unconstitutionality of paragraph 3(c) of section 68 of the Civil Practice Act.

Plaintiffs filed a motion to dismiss on the ground that no constitutional question in regard to the validity of a statute is involved. They also content that defendantPublic Service Company, by its withdrawal of the motion for new trial, waived the same, and therefore the Appellate Court, in directing judgment on the verdicts, was exercising appellate, and not original jurisdiction, as claimed by said defendant. This motion was taken with the case.

The questions raised by said Public Service Company, relate to the power or jurisdiction of the Appellate Court to enter the judgment against it here reviewed. Until that judgment was entered defendant was not required to anticipate that the court would enter a judgment which defendant believed to be in excess of its jurisdiction. The failure on its part to anticipate the entry of such judgment cannot be regarded as estopping it from urging constitutional objections not arising prior to the entry of said judgment. An objection to the power of the court to enter a judgment, inasmuch as it goes to the jurisdiction of the court, can be raised at any time after judgment is entered. Scott v. Freeport Motor Casualty Co., 379 Ill. 155, 39 N.E.2d 999;Toman v. Park Castles Apartment Building Corp., 375 Ill. 293, 31 N.E.2d 299;People ex rel. Carr v. Psi Upsilon Fraternity, 320 Ill. 326, 150 N.E. 677. The right of this...