Rodriguez v. Chicago Transit Authority

• Decision Date: 15 April 1965
• Docket Number: Gen. No. 49873
• Citation: 206 N.E.2d 828,58 Ill.App.2d 150
• Parties: Cecilio RODRIGUEZ, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 828

206 N.E.2d 828

58 Ill.App.2d 150

Cecilio RODRIGUEZ, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.

Gen. No. 49873.

Appellate Court of Illinois, First District Third Division.

April 15, 1965.

Sidney S. Altman, Chicago, for appellant.

William J. Lynch, William S. Allen, Jerome F. Dixon, Francis T. Delaney, Chicago, for appellee.

DEMPSEY, Presiding Justice.

The question presented in this case is whether the plaintiff-appellant has properly appealed from an order granting the defendant a new trial.

The action was one for personal injuries and the jury returned a verdict for the plaintiff in the sum of $1,000.00. The defendant filed a motion for a new trial on the principal ground that the verdict was contrary to the weight of the evidence. Subordinate grounds, alleged in general terms, were that the verdict was contrary to law, that the jury ignored the instructions of the court and that it was influenced by sympathy. The motion was allowed, the plaintiff's judgment vacated and a new trial ordered. A few days later the plaintiff waived his right to a new trial and filed an affidavit in support of his motion for waiver. Subsequently he obtained, on his own motion, an order striking that portion of the original order which granted a new trial and substituting in lieu thereof the following language:

'It is further ordered that the defendant, Chicago Transit Authority, a Municipal Corporation, go hence without day, without prejudice to the appeal rights of either party.'

The plaintiff has prosecuted a direct appeal from the order vacating his judgment which as amended includes the above quoted language.

His purpose in attempting this method of appellate review is to circumvent Supreme Court Rule 30 Ill.Rev.Stat.1963, ch. 110, § 101.30, which governs appeals from orders granting new trials and which was in effect on May 8, 1965, the date the order was entered. It provides:

'On leave granted by the Appellate Court an appeal may be taken to that court from an order granting a new trial.'

The plaintiff chose not to avail himself of this leave to appeal provision. He reasoned that if he could get an order in the trial court that was final in itself he could force this court to entertain his appeal without first obtaining leave. Accordingly, he waived his right to a new trial and moved the trial court to enter judgment for the defendant--which judgment effectively disposed of the case as the words, 'the defendant * * * go hence without day' are held to be the language of final judgment for a defendant. Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200, 75 N.E. 473; Barrow v. Robinson, 28 Ill.App.2d 358, 171 N.E.2d 663. The plaintiff then appealed from this judgment. The issue thus presented is whether a party can arbitrarily circumvent the established method of appealing from an order granting a new trial by sacrificing his right to the new trial and securing a final and therefore appealable judgment order against himself.

The plaintiff's reasons for endeavoring to bypass Rule 30 are twofold: he does not want to retry his case and he wants his appeal judgment by a standard different from the one that is applied to petitions for leave to appeal from orders granting a new trial.

He does not want to retry his case because he fears the result of another trial. He candidly acknowledged in the affidavit filed in support of his motion for an adverse judgment that his case would probably be less strong if tried a second time because there was admitted into evidence in the first trial, by agreement, a hospital record containing hearsay evidence favorable to him. He thinks that the hospital record is vulnerable to objection and that it is unlikely that the defendant would make the same 'blunder' in another trial.

By avoiding a conditional appeal the plaintiff hopes to obtain the application of a more advantageous standard to the evidence produced in the trial court. Although he contends that the evidence sustained the verdict and that this court should so find, he was not so sure that this would be the finding under the standard that has developed pertaining to appeals from orders granting new trials. In Potter v. Ace Auto Parts & Wreckers, Inc., 49 Ill.App.2d 354, 199 N.E.2d 618, this court said:

'A motion for a new trial is addressed to the discretion of the trial judge and his judgment thereon will not be reversed except for a clear abuse of such discretion, which must affirmatively appear in the record. The trial judge has an advantage over a court of review in that he has an opportunity to observe at firsthand the conduct of the trial, the demeanor of witnesses and counsel, the reaction of jurors to evidence and argument and the effect upon them of incidents that occur during the trial. If he is of the opinion that the verdict of the jury is not sustained by a preponderance of the evidence or that improper conduct or argument influenced the verdict, he should grant a new trial.'

When a petition is filed asking leave to appeal from an order granting a new trial the reviewing court examines the record and studies the briefs to ascertain if the trial court was within its discretion in depriving the victorious party of his judgment. If there is a fairly debatable question whether the discretion was properly exercised the petition will be granted. Where the trial court has not stated the reason for its order, the reviewing court turns to the losing party's post-trial motion, for it is presumed that the errors there alleged prompted the order. In the instant case the court gave no explanation for entering the order. The defendant's post-trial motion, however, repeatedly asserted but one specific error: that the verdict was against the weight of the evidence. Under these circumstances it must be presumed that the trial court was of the opinion that the evidence did not preponderate in favor of the plaintiff, for it is the duty of the trial court to set aside a jury verdict if, in the judgment of the court, the verdict is not in accord with the weight of the evidence. Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625, 85 N.E. 914; In re Estate of Velie, 318 Ill.App. 550, 48 N.E.2d 431; Wagner v. Chicago Motor Coach Co., 288 Ill.App. 402, 6 N.E.2d 250; Barthelman v. Braun, 278 Ill.App. 384.

The reviewing court in this case, therefore, would have had but one task--that of examining the evidence to see if it supported the jury's verdict; and it would have had but one test--that of the greater weight of the evidence. Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 451; Goodrich v. Sprague, 385 Ill. 200, 52 N.E.2d 250; Bollin v. Galesburg Horse & Mule Co., 276 Ill.App. 256. If the reviewing court concluded that the evidence preponderated in the defendant's favor or that the trial court's discretion was not abused, the order would be affirmed. On the other hand, if the reviewing court concluded that the evidence preponderated in the plaintff's favor, the order would be reversed and the case would be remanded with directions to set aside the order granting a new trial and to proceed in due course. Goodrich v. Sprague, supra; Kavanaugh v. Washburn, 387 Ill. 204, 56 N.E.2d 420.

Therefore, if the plaintff was correct in his estimation of the evidence he had nothing to lose by following the prescribed appeal procedure; he would have regained his judgment and would have avoided a new trial.

By the present form of appeal he expects to evade both the latitude given the trial court and the greater weight of the evidence standard. He states in his brief that, '[T]he question is the manifest weight of the evidence.' The rule that a court of review will not set aside the verdict of a jury unless it is against the manifest weight of the evidence or an opposite conclusion is clearly indicated would be of great benefit to the plaintiff if it were applicable--but it is not. This rule is applied by a court of review when the jury's verdict has been approved by the trial court, and the court's approval of the verdict is the core of the rule. In the present case the court dispproved of the verdict.

There is another standard that would benefit the plaintiff and which he naturally would like to have used. The order before us is equivalent to a judgment notwithstanding the verdict: there was a verdict for the plaintiff but judgment was entered for the defendant. This form of judgment preserves for review only a single question: whether there is any evidence which, taken in the light most favorable to the plaintiff, sustains his complaint and supports the jury's verdict. Seeds v. Chicago Transit Authority, 409 Ill. 566, 101 N.E.2d 84; Hughes v. New York Cent. System, 20 IllApp.2d 224, 155 N.E.2d 809. If this standard of review were to be applied it would in effect be permitting the plaintiff to unilaterally reduce the quantum of evidence required to reverse an order granting a new trial. We do not believe a litigant should be allowed to thus arbitrarily adjust the standard of review to his favor.

The plaintiff argues that what he is doing in this case parallels the procedure which was hitherto available for making an interlocutory order of the Appellate Court final and appealable. Ill.Rev.Stat., 1963, chap. 110, sec. 75(2)(c). The affidavit in support of his waiver of a new trial was filed with this procedure in mind. An order of the Appellate Court reversing a judgment of the trial court and remanding the cause for a new trial is not a final order. An amendment to the Civil Practice Act of 1933, which became effective in 1942 (and which was thereafter incorporated into the 1955 Act), provided that such an order could be made final by the filing of an affidavit and a motion by the party whose judgment had been reversed. The affidavit would relate that the party could produce no further evidence in another trial and that he would waive his right to a new trial. The motion would be to str...