Merrill v. Hill

• Citation: 783 N.E.2d 152,270 Ill.Dec. 577,335 Ill. App.3d 1001
• Decision Date: 31 December 2002
• Docket Number: No. 2-01-1190.,2-01-1190.
• Parties: James H. MERRILL, Plaintiff-Appellant, v. Derek HILL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

783 N.E.2d 152

335 Ill. App.3d 1001

270 Ill.Dec. 577

James H. MERRILL, Plaintiff-Appellant, v. Derek HILL, Defendant-Appellee.

No. 2-01-1190.

Appellate Court of Illinois, Second District.

December 31, 2002.

Eugene N. Traunfeld, Abderholden & Traunfeld, P.C., Chicago, for James H. Merrill.

Keely Truax, Parrillo, Weiss & O'Halloran, Chicago, for Derek Hill.

Justice CALLUM delivered the opinion of the court:

Plaintiff, James H. Merrill, brought this lawsuit in the circuit court of Du Page County seeking recovery for property damage sustained in a motor vehicle accident with defendant, Derek Hill. The matter proceeded to a jury trial resulting in a verdict of $6,750 for plaintiff. Disappointed with the amount of the award, plaintiff filed a posttrial motion seeking, alternatively, a judgment notwithstanding the verdict, an additur, or a new trial on damages. The trial court denied the motion and plaintiff brought this appeal. We conclude that, unless defendant consented to an additur of $3,037.17, the trial court should have ordered a new trial on damages only.

The evidence establishes that on the evening of January 27, 1997, plaintiff was driving a Volkswagen Passat west on a two-lane road in Naperville. The accident occurred at a point where the road curved to the south. According to plaintiff, there was a light covering of snow on the road, but he had no difficulty handling his vehicle. Plaintiff testified that he observed a vehicle operated by defendant approaching from the other direction. Defendant's vehicle did not follow the curve and crossed into plaintiff's lane, striking plaintiff's vehicle head-on. Plaintiff testified that before the accident there was no damage to the vehicle. After the accident the whole front end had been destroyed. Plaintiff identified a bill for $9,787.17 to repair damage to the vehicle sustained in the accident, and he testified that the bill had been paid. According to plaintiff, the vehicle was in the repair shop for about six weeks. Plaintiff also identified a paid bill for $1,010.68 for the rental of a replacement vehicle for 53 days from February 3, 1997, to March 27, 1997.

Defendant called plaintiff to testify and showed him two photographs. Plaintiff confirmed that the photographs fairly and accurately depicted his vehicle as it appeared after the accident. Defendant made no reference to the photographs having been marked for identification and did not ask to show them to the jury. The photographs were not admitted into evidence.

Defendant testified that, as he approached the curve where the accident occurred, he observed that plaintiff's vehicle was proceeding toward him and appeared to be "fishtailing." Defendant was driving at about 20 miles per hour—about 5 miles per hour below the speed limit. Defendant applied his brakes but they locked and the car slid. He tried pumping the brakes but could not bring the vehicle to a stop, and it collided with plaintiff's vehicle. According to defendant, the road conditions were bad. Defendant was shown the same photographs shown to plaintiff, and he testified that they accurately represented the damage to plaintiff's vehicle. Again however, there was no reference to the photographs having been marked for identification, defendant did not ask to show them to the jury, and they were not admitted into evidence.

The jury returned a verdict for plaintiff for $6,750, and judgment was entered for that amount. Plaintiff filed a timely posttrial motion seeking, in the alternative, a judgment of $10,797.85, notwithstanding the verdict, an additur, or a new trial on damages only. The trial court denied the motion. This appeal followed.

We first consider whether the trial court erred in denying the motion for a judgment notwithstanding the verdict. It is firmly established that "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967). There is conflicting authority whether the trial court may direct a verdict or enter a judgment notwithstanding the verdict as to damages. In Chapman v. Deep Rock Oil Corp., 333 Ill.App. 529, 537, 77 N.E.2d 883 (1948), a judgment notwithstanding verdict increasing the jury's award from $2,000 to $3,100 was upheld. The plaintiff sought recovery for property damage that resulted from a fire caused by the defendant's negligence. The court observed:

"Under the undisputed evidence the plaintiff, if entitled to recover at all, was entitled to recover his full damages of $3,100, which were fully covered in the pleadings. The plaintiff testified that the value of his personal property destroyed by the fire was $3,100, and an itemized list of articles destroyed and their value was prepared by the plaintiff and it was admitted into evidence with the consent of the defendant. It was in our opinion proper for the trial court to mould the verdict * * * to meet the evidence in the case and to enter judgment notwithstanding the verdict for the amount which the evidence showed the plaintiff was entitled to recover." Chapman, 333 Ill.App. at 537, 77 N.E.2d 883.

In Frisch Contracting Service Corp. v. Northern Illinois Gas Co., 93 Ill.App.3d 799, 807, 49 Ill.Dec. 243, 417 N.E.2d 1070 (1981), this court observed that "if the damage evidence is reasonable and undisputed * * * there may be occasions when a property damage question can be decided by the trial judge as a matter of law." Nonetheless, we "urge[d] caution in this respect due to the inherent and general lack of conclusiveness of damage evidence even when no contrary evidence is offered." Frisch, 93 Ill.App.3d at 807, 49 Ill.Dec. 243, 417 N.E.2d 1070; see also Baker v. Hutson, 333 Ill.App.3d 486, 266 Ill.Dec. 791, 775 N.E.2d 631 (2002). In Frisch, the parties introduced conflicting evidence on damages and we held that a directed verdict for the defendant was therefore improper. Frisch, 93 Ill.App.3d at 807-08, 49 Ill.Dec. 243, 417 N.E.2d 1070.

More recently, in Allstate Insurance Co. v. Mahr, 328 Ill.App.3d 915, 263 Ill.Dec. 43, 767 N.E.2d 494 (2002), we held that it was error to enter a judgment notwithstanding the verdict in order to increase damages. In Mahr, as in the present case, the plaintiff prevailed at trial but was disappointed with the jury's award for damage to a motor vehicle. Though there was evidence of a paid repair bill for almost $3,000, the jury awarded only $125. The plaintiff argued that because the bill was undisputed the court should enter judgment notwithstanding the verdict and award the full amount of the bill. The trial court agreed. The defendant argued on appeal that the judgment notwithstanding the verdict was improper because evidence relating to liability was conflicting. Mahr, 328 Ill.App.3d at 916, 263 Ill.Dec. 43, 767 N.E.2d 494. We noted that, in reality, the judgment notwithstanding the verdict was an additur, which was improper because the defendant did not consent to it. We observed as follows:

"Based on the practices of the English Common law, American courts have maintained the distinction that motions for a directed verdict or for judgment n.o.v. are limited to liability issues. Conversely, motions for remittitur or additur are used to contest the amount of damages. [Citations.] The trial court may grant judgment n.o.v. where the evidence so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. [Citation.] However, additur may be awarded only where the defendant consents to it as an alternative to a new trial, even where the damages are liquidated or the evidence of damages is essentially undisputed. [Citation.]

In Hughes v. Bandy, 404 Ill. 74, 87 N.E.2d 855 (1949), the supreme court disapproved the procedure followed here of using a motion for judgment n.o.v. to correct an apparent error in the jury's calculation of damages. There, the jury found for the plaintiff and awarded him $615. The trial court granted the plaintiff's motion for judgment of $1,218.25, citing uncontradicted evidence of damages in that amount. The appellate court reversed and the supreme court affirmed the appellate court, stating, as follows:

`A disputed question of fact as to ultimate liability was presented to the jury, and this question was decided in favor of plaintiff and against defendant. The mere fact that the evidence with respect to damages was not in dispute is beside the point so far as plaintiff's motion for judgment notwithstanding the verdict is concerned.' Hughes, 404 Ill. at 80, 87 N.E.2d 855.

The court observed that in its previous cases approving increases in the damage award the trial courts had done so only with the defendants' consent as an alternative to granting new trials. Hughes, 404 Ill. at 80-81, 87 N.E.2d 855, citing James v. Morey, 44 Ill. 352 (1867), and Carr v. Miner, 42 Ill. 179 (1866). The court further held that, because the plaintiff had not sought a new trial in his postjudgment motion, he was barred from challenging the jury's verdict. Hughes, 404 Ill. at 81, 87 N.E.2d 855." Mahr, 328 Ill.App.3d at 916-17, 263 Ill. Dec. 43, 767 N.E.2d 494.

In view of the principles of Hughes and Mahr, the trial court properly refused to enter a judgment notwithstanding the verdict. As in Mahr and Hughes, the evidence of liability in this case was not so overwhelming that no verdict for defendant could ever stand. The jury found that defendant acted negligently, but it rationally could have concluded that defendant exercised due care but was still unable to avoid the accident.

We next consider whether the trial court should have ordered an additur or a new trial on damages only. The two forms of relief are related. Under the doctrine of additur, in appropriate cases the trial court may order...