Quagliano v. Johnson

• Decision Date: 23 October 1968
• Docket Number: Gen. No. 68--2
• Citation: 100 Ill.App.2d 444,241 N.E.2d 187
• Parties: Francisco V. QUAGLIANO, Plaintiff-Appellant, v. Oliver D. JOHNSON, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 187

241 N.E.2d 187

100 Ill.App.2d 444

Francisco V. QUAGLIANO, Plaintiff-Appellant, v. Oliver D. JOHNSON, Defendant-Appellee.

Gen. No. 68--2.

Appellate Court of Illinois, Third District.

Oct. 23, 1968.

William E. Stewart, Kewanee, for plaintiff-appellant.

Andrews & Andrews, Kewanee, for defendant-appellee.

CULBERTSON, Justice.

Plaintiff, Francisco V. Quagliano, brought this suit against Oliver D. Johnson, defendant, charging him with having alienated the affections of plaintiff's wife. A jury returned a verdict for defendant and plaintiff has prosecuted this appeal. He contends that the verdict was against the manifest weight of the evidence; that newly discovered evidence that a material witness testified falsely entitled him to a new trial; and that the trial court erred in regard to instructions and in certain of its rulings on evidence.

We see no beneficial purpose in setting forth the evidence upon which the jury acted, inasmuch as the record discloses that plaintiff is precluded from raising the question whether the verdict was against the manifest weight of the evidence. In a case of this character, a plaintiff has the burden of proving three propositions. First, that he had the care and affection of his wife; second, that overt acts, conduct or enticement on the part of defendant caused those affections to depart; and third, that actual damage was sustained by the plaintiff as a result of the alienation. (Roe v. Roe, 315 Ill. 120, 122, 145 N.E. 804; Farrier v. Farrier, 46 Ill.App.2d 471, 474, 197 N.E.2d 163). Here, at the conclusion of the evidence, plaintiff submitted each of these propositions to the jury by special interrogatories and in each instance, the answers were favorable to defendant and manifested findings by the jury that plaintiff had not sustained his burden of proof as to any of the propositions. Despite these unfavorable findings, plaintiff made no motion to set them aside, did not object to them as being against the manifest weight of the evidence, and did not in any manner attack them in his motion for a new trial. These omissions are necessarily fatal to his contention that the verdict is against the manifest weight of the evidence. Courts of review in this jurisdiction have frequently held: (a) that a party is conclusively bound by an answer to a special interrogatory on a material issue unless he moves to set it aside, or attacks it in his motion for new trial, and (b) that a general objection that the verdict is contrary to the manifest weight of the evidence is not sufficient to preserve for review questions going to the propriety of a special finding. (Brimie v. Belden Mfg. Co., 287 Ill. 11, 122 N.E. 75; Taake v. Eichhorst, 344 Ill. 508, 176 N.E. 765; Biggerstaff v. New York, C. & St. L.R. Co., 13 Ill.App.2d 85, 141 N.E.2d 72; Westlund v. Kewanee Public Service Co., 11 Ill.App.2d 10, 136 N.E.2d 263; Rubottom v. Crane Co., 302 Ill.App. 58, 23 N.E.2d 354.) Absent some objection or challenge in the court below, we must consider the special findings to have been fully supported by the evidence. (Freeman v. Chicago Transit Authority, 50 Ill.App.2d 125, 136, 200 N.E.2d 128; Forslund v. Chicago Transit Authority, 9 Ill.App.2d 290, 294--295, 132 N.E.2d 801; Voigt v. Anglo-American Provision Co., 104 Ill.App. 423, aff'd 202 Ill. 462, 66 N.E. 1054.) Since this is so and since the answers to the interrogatories are conclusive of the issues in the case, the question of whether or not the verdict was against the manifest weight of the evidence is not before us.

Plaintiff's wife testified at the trial that she had, at times during 1963 and 1965, consulted with three different attorneys about getting a divorce. Subsequently, in connection with his post trial motion, plaintiff produced affidavits of two of the attorneys averring that she had not consulted them about a divorce, whereupon defendant countered with an affidavit of the third attorney reflecting his belief that he had been consulted in 1965 as the wife had testified. Plaintiff now urges that the wife gave false testimony and that the trial court erred in not allowing a new trial in light of the newly discovered evidence of her false statements. And while not spelled out, we take plaintiff's position to be that the purported false testimony had bearing on the issue of whether he had the affections of his wife when her close association with defendant commenced.

It is indeed the law that newly discovered evidence that a material witness testified falsely on the trial may alone be sufficient to warrant a new trial, and it likewise has frequently been stated that courts should not hesitate to grant a new trial on account of newly discovered evidence, where it is apparent or likely that it might change the result upon a retrial. (People v. Cotell, 298 Ill. 207, 214--217, 131 N.E. 659; Swiney v. Miller, 253 Ill.App. 81, 88.) On the other hand, it has been held that newly discovered evidence which serves merely to impeach or discredit a witness does not constitute a ground for a new trial, particularly where it is cumulative and not conclusive on any point material to the issue of the case. (People ex rel. Partello v. McCullough, 210 Ill. 488, 518, 71 N.E. 602; Chicago & E.I.R.R. Co. v. Stewart, 203 Ill. 223, 224, 67 N.E. 830; Morsovillo v. South Suburban Safeway Lines, Inc., 49 Ill.App.2d 219, 221--222, 199 N.E.2d 643.) Testing the record here by these principles, we believe the trial court properly refused to grant a new trial. The testimony of the two attorneys at best could only be used to partially impeach and discredit the wife. Most certainly it would not be conclusive on the issue of whether plaintiff had lost his wife's affection, and in our opinion any denial on their part that the wife had consulted them about a divorce in 1963 and 1965 would not...