Olson v. Chicago Transit Authority

• Decision Date: 24 September 1953
• Docket Number: Nos. 32447,32611,s. 32447
• Citation: 1 Ill.2d 83,115 N.E.2d 301
• Parties: OLSON v. CHICAGO TRANSIT AUTHORITY.
• Court: Illinois Supreme Court

Page 301

115 N.E.2d 301

1 Ill.2d 83

OLSON v. CHICAGO TRANSIT AUTHORITY.

Nos. 32447, 32611.

Supreme Court of Illinois.

Sept. 24, 1953.

Rehearing Denied Nov. 16, 1953.

James A. Dooley, of Chicago, for plaintiff in error.

Thomas C. Strachan, Jr., Werner W. Schroeder, Fred J. O'Connor, and James E. Hastings, all of Chicago, for defendant in error.

SCHAEFER, Chief Justice.

This action was brought in the superior court of Cook County to recover damages for injuries allegedly suffered as the result of a collision between the defendant's streetcar and an automobile from which the plaintiff, a minor child, was alighting. There was a trial and verdict for plaintiff in the amount of $75,000. Motions for new trial and for judgment notwithstanding the verdict were denied, and judgment was entered on the verdict.

On appeal to the Appellate Court the defendant did not dispute the negligent operation of the streetcar, but contended that the verdict was excessive in that it included damages for certain convulsive seizures of the plaintiff which began some ten and a half months after the accident. Defendant aruged that the evidence did not show that these seizures were caused by the accident, and that in fact they were the product of a congenital condition. The Appellate Court agreed that the size of verdict indicated the jury had awarded damages for these seizures, and that in this respect the verdict was contrary to the manifest weight of the evidence. The court therefore reversed the judgment of the trial court and remanded the cause for a new trial on this issue. Olson v. Chicago Transit Authority, 346 Ill.App. 47, 104 N.E.2d 542.

Plaintiff moved for a rehearing and to vacate the judgment of the Appellate Court as beyond its constitutional powers. Upon denial of this motion plaintiff filed a petition for leave to appeal to this court, and subsequently sued out a writ of error to review the judgment of the Appellate Court. The petition for leave to appeal was allowed, and the two causes consolidated.

In both causes the plaintiff asserts that section 92(3)(b) of the Civil Practice Act (Ill.Rev.Stat.1951, chap. 110, par, 216(3)(b)), is unconstitutional insofar as it permits the Appellate Court to reverse a judgment entered upon the verdict of a jury, and remand for a new trial on the ground that the verdict is against the weight of the evidence. The alleged constitutional defects are (1) that the action of the Appellate Court violates the right of trial by jury guaranteed by article II, section 5, S.H.A.Const., (2) that it amounts to an exercise of original jurisdiction in violation of article VI, section 11, and (3) that section 92(3)(b), read in conjunction with section 75(2)(c) (Ill.Rev.Stat.1951, chap. 110, par. 199(2)(c)), effects a discrimination between appellant and appellee, and thus violates article II, section 19, article IV, section 22, and article VI, section 29.

The first contention was rejected in Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 541, after an extensive consideration of the history of trial by jury at common law. The Corcoran case was identical with this, except that the Appellate Court had there stricken the remanding clause on the plaintiff's motion, supported by an affidavit that another trial would involve no new issues and no new evidence. That difference is of no significance on the present issue. The plaintiff apparently concedes that the Corcoran case is controlling, and asks us to reconsider that decision. She asserts that the court's conclusion in the Corcoran case, that the practice at common law sanctioned the setting aside of verdicts by reviewing courts on the basis of the weight of the evidence, overlooked the qualification that this was done only with the concurrence of that member of the court who had been the nisi prius judge in the case. The fragmentary character of the historical evidence makes it difficult to decide the truth of this assertion. (The authorities relied upon by plaintiff appear in 19 Chicago Kent Law Review 91.) Assuming it to be correct, however, we think that the asserted qualification is not one of those essential attributes of jury trial which the constitution preserves.

'It is well settled that the object of a constitutional provision guaranteeing the right of a trial by jury is to preserve the substance of the right rather than to prescribe the details of the mothods by which it shall be exercised and enjoyed.' People v. Kelly, 347 Ill. 221, 224, 179 N.E. 898, 899, 80 A.L.R. 890. At least since Wood v. Gunston, Style 466, 82 Eng.Rep. 867, decided in 1655, judges at common law reviewed the verdicts of juries, and set them aside when contrary to the manifest weight of the evidence. It is the fact of judicial review of the verdict in terms of the weight of the evidence which concerns the substance of the right of trial by jury, rather than the precise composition of the court which does the reviewing. Plaintiff's argument would subordinate the substance of judicial review to the detail of the identity of individual members of the reviewing tribunal. More important, plaintiff's argument would, under our scheme of judicial organization, wholly eliminate the common-law characteristic of review by judges other than the trial judge. For, under our system, if there is to be a review of the ruling of a trial judge in denying or granting a motion for new trial based upon the weight of the evidence, that review takes place before a court of which the judge presiding at the trial is not a member. In accordance with long-established practice, judges of this court disqualify themselves in cases in which rulings they have made as trial judges are brought before the court. And in the case of the judges of the Appellate Court, section 11 of article VI of the constitution provides that no Appellate Court judge shall sit in review upon a case in which he presided at the trial. Because conformity with every detail of practice in the common-law courts is not possible under our scheme of judicial organization, it does not follow that a significant characteristic of common-law trial by jury must be eliminated. Under the constitution, there is room for adjustment of details so long as essentials are retained. We hold that plaintiff's first contention does not raise a substantial constitutional question.

The contention that the Appellate Court has exercised original jurisdiction is without foundation. The only action taken by that court was to reverse the ruling of the trial judge upon a motion first presented and decided in the trial court. In this case, therefore, the Appellate Court was not exercising original jurisdiction by passing upon a matter not ruled upon by the trial court in the manner found objectionable in Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897, and Scott v. Freeport Motor Casualty Co., 379 Ill. 155, 39 N.E.2d 999. See Goodrich v. Sprague, 385 Ill. 200, 52 N.E.2d 250.

Plaintiff's final contention is that the scheme of review authorized by sections 75(2)(c) and 92(3)(b) of the Civil Practice Act (Ill.Rev.Stat.1951, chap. 110, pars. 199(2)(c) and 216(3)(b)) is discriminatory and inequitable and so violates article II, section 19, article IV, section 22, and article VI, section 29. It is true that if defendant had been unsuccessful in the Appellate Court it could have sought review in this court, whereas the plaintiff may not obtain review here without filing the requisite affidavit in accordance with section 75(2)(c) of the Civil Practice Act. (Ill.Rev.Stat.1951, chap. 110, par. 199(2)(c).) This result, however, stems only from an application of the general rule that only final judgments are reviewable,-a rule embodied in more than a century of common and statutory law in this State. (See, e. g., Laws, 1827, p. 318, sec. 32; Hayes v. Caldwell, 5 Gilm. 33; Morris v. Beatty, 390 Ill. 568, 571, 62 N.E.2d 478.) Plaintiff suggests that subsequent new trials may also result in verdicts and judgments in her favor, followed by reversal and remandment in the Appellate Court, so that review in this court could never be had. Section 75(2)(c) provides a ready remedy, however, by making it possible to eliminate remandment when the plaintiff is satisfied that he has produced all of the available evidence. (Ill.Rev.Stat.1951, chap. 110, par. 199(2)(c).) Moreover, since the scope of our review in any event excludes consideration of the weight of the evidence under section 92(3)(b) of the Civil Practice Act (Ill.Rev.Stat.1951, chap. 110, par. 216(3)(b)), the nonreviewability of the judgment of the Appellate Court works no hardship in this case.

In support of her position plaintiff cites Hecker v Illinois Central Railroad Co., 231 Ill. 574, 83 N.E. 456. There a statute was held invalid which permitted this court to review both the facts and the law in a case coming from the Appellate Court if that court, without remanding for a new trial, had reversed the judgment of the trial court as the result of finding the facts to be...