Vieceli v. Cummings

• Decision Date: 26 April 1944
• Docket Number: Gen. No. 42746.
• Citation: 322 Ill.App. 559,54 N.E.2d 717
• Parties: VIECELI v. CUMMINGS ET AL.
• Court: United States Appellate Court of Illinois

322 Ill.App. 559

54 N.E.2d 717

VIECELI

v.CUMMINGS ET AL.

Gen. No. 42746.

Appellate Court of Illinois, First District, Third Division.

April 26, 1944.

Appeal from Superior Court, Cook County; Michael L. McKinley, Judge.

Personal injury action by John Vieceli against Walter J. Cummings and another, as receivers, etc., doing business as Chicago Surface Lines. From an adverse judgment, plaintiff appeals.

Affirmed. George L. Reilly and Frank E. Auster, both of Chicago, for appellant.

Frank L. Kriete, W. F. McLaughlin, and Arthur J. Donovan, all of Chicago (William J. Flaherty, of Chicago, of counsel), for appellees.

BURKE, Justice.

In a complaint filed in the Superior Court of Cook County by John Vieceli against the receivers of the corporations doing business as Chicago Surface Lines, plaintiff asked damages for personal injuries suffered because of negligence in the operation of a bus and also because of the wilful, wanton and malicious conduct in the operation of the bus. Issue was joined and the cause tried before the court and a jury. Motions were made by defendant at the close of plaintiff's case and at the close of all the evidence to find the defendants not guilty. These motions were denied. Plaintiff's counsel tendered instructions to the court, but the court refused to give them to the jury. The court, over the objection of counsel for plaintiff, refused to allow arguments, or to give instructions to the jury, and a verdict of not guilty was returned by the jury without any instructions given to them by the court or argument by respective counsel. A motion for a new trial was denied and judgment entered on the verdict against plaintiff for costs, to reverse which this appeal is prosecuted.

In assailing the judgment plaintiff states that the right of a party litigant to address the jury by his counsel is absolute, and that it is the duty of the court to give instructions stating the law applicable to the evidence on the issues raised. To sustain the judgment, defendants maintain that the verdict was the only verdict warranted by the evidence, and that the court should have directed such verdict when requested at the close of all the evidence. The law is well settled that argument of counsel is a matter of right. Argument of a case is as much a part of the trial as the hearing of the evidence. A party to a civil suit has a right to be heard, either by himself or by counsel, not only in the testimony, but in the argument of his case. No matter how weak or inconclusive the case may be, if it is enough to present a disputed question of fact, the counsel of the party has a right to present his client's case to the jury. Carpenter v. First National Bank, 19 Ill.App. 549;Thompson v. People of the State of Illinois, 144 Ill. 378, 32 N.E. 968;Lanan v. Hibbard, Spencer & Bartlett & Co., 63 Ill.App. 54. The office of instructions is to give information to the jury concerning the law of the case for application to the subject matter before them. It is a well settled rule of law that each side in any litigation is entitled to have the jury instructed relative to the theory of the law upon which the case is tried. Each side has a right to have the court give instructions stating the law applicable to the facts presented by such party, so that if the jury finds the facts in accordance with such evidence, they may correctly apply the law thereto. Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 158 N.E. 380;Bentkowski v. Bryan, 299 Ill.App. 217, 19 N.E.2d 841;Sampsell v. Rybcynski, 229 Ill. 75, 82 N.E. 244. By a motion to direct a verdict at the close of plaintiff's case, the sole question presented to the court is whether, admitting the evidence in favor of the plaintiff to be true, that evidence, together with all legitimate conclusions and inferences, fairly tends to sustain plaintiff's cause of action. If, at the close of plaintiff's case, the court was convinced that plaintiff had failed to sustain his cause of action, in accordance with the familiar rule here repeated, it was his duty to direct a verdict for the defendants. The court denied defendants' motion to direct a verdict at the close of plaintiff's case. By introducing evidence after a motion to direct a verdict at the close of plaintiff's case had been overruled, defendants waived the right to assign error on that ruling. By a motion to direct a verdict at the close of all the evidence, the same question is presented and the same test applied as on a motion to direct a verdict at the close of plaintiff's evidence, but the plaintiff has the added right of the benefit of all favorable inferences, deductions and conclusions that may be drawn in his favor, not only from the testimony in his own case, but also in the testimony produced by the defendants. At the close of all the testimony the court denied defendants' motion for a directed verdict. By a motion for judgment notwithstanding the verdict, the same question is again presented and the same test applied as in deciding a motion for a directed verdict at the close of all the evidence. In deciding these three motions, the court had no right to pass upon the credibility of the witnesses, to consider any purported impeachments, the weight thereof, or the weight of the testimony, since the motions admit the evidence in favor of plaintiff to be true, together with all legitimate conclusions and inferences. If the court were convinced, at the close of all the evidence, that the plaintiff, under these tests, had failed to present evidence to sustain his cause of action, it was the duty of the court to direct a verdict for the defendants. The court submitted the case to the jury, but refused to instruct the jury as to the law applicable to the case, and refused to permit counsel to argue the case to the jury.

Defendants do not oppose the argument of plaintiff that where a case is submitted to a jury the respective parties have the right to argue the case before the jury, and that the parties have the right to have the jury instructed as to the law applicable to the case. They assert that the verdict returned by the jury is the verdict which they requested the court to direct; that the judgment entered is the judgment sought by them; and that having eventually obtained the judgment which they sought, they have no cause to appeal either directly or by cross-appeal. On this appeal defendants are entitled to urge every ground presented by the record which supports the judgment in their favor. In People v. Bradford, 372 Ill. 63, our Supreme Court said at pages 65, 66, 22 N.E.2d 691, at page 693:

“The judgment appealed from was for appellees, and no part of it was adverse to them. They were, therefore, in no position to prosecute a cross-appeal. Having obtained all the relief they deemed themselves entitled to, they may sustain the judgment upon any ground warranted by the record, though they may wish to show the court below erred in not giving it to them on different or additional grounds.”

See also McNulty v. Hotel Sherman Co., 280 Ill.App. 325, 331; Hillmer v. Chicago Bank of Commerce, 375 Ill. 266, 272, 31 N.E.2d 309. In Lanan v. Hibbard, Spencer & Bartlett & Co., 63 Ill.App. 54, in reversing the judgment and remanding the cause because appellant's counsel was not permitted to argue the case to the jury, the court said:

“We regret that we are unable to say that the evidence in this case was so clear that the court might properly have instructed the jury to find for the plaintiffthe amount recovered by him, in which case appellant would have had no right to address the jury.”

Defendants analyze the evidence in furtherance of their argument and state that, admitting the evidence in favor of plaintiff to be true, together with all legitimate inferences, such evidence does not sustain plaintiff's cause of action, and that it was the duty of the court to direct a verdict. We have read the transcript of the testimony in order to determine whether under the rules we have announced, plaintiff made out a case which should have been submitted to the jury. In doing so, we consider the point urged by defendants as though the court had directed a verdict for the defendants.

The collision out of which this case arose occurred at Belmont and Pacific Avenues, Chicago, on Wednesday, August 6, 1941 at about 7 p.m. Belmont Avenue runs in an easterly and westerly direction and Pacific Avenue in a northerly and southerly direction. Belmont Avenue is 53 feet 6 inches wide from curb to curb, and Pacific Avenue is 33 feet 5 inches wide from curb to curb. Defendants controlled and operated buses on Belmont Avenue as far west as Pacific Avenue. The power for the buses came from overhead trolley wires. The trolley wires for westbound buses were strung in an easterly and westerly direction 12 feet south of the north curb, and the wires for the eastbound buses were strung in an easterly and westerly direction about 13 feet north of the south curb. A drawing in evidence portrays the scene of the accident. Buses moving in a westerly direction make a wide circle to the left from Pacific Avenue in a space south of Belmont Avenue and west of Pacific Avenue in order to turn around and proceed in an easterly direction in Belmont Avenue. This movement and space may be described as a turn-around. The trolley wires for westbound buses start turning toward the southwest 42 feet east of the east curb of Pacific Avenue, and continue on that slant up to the west curb line on Pacific Avenue, where they make a complete arc with a 35 foot radius. The trolley wires start making the turn about 12 feet south of the north curb of Belmont Avenue and 42 feet east of the east curb of Pacific Avenue, and when these wires are opposite the west curb of Pacific Avenue they are 22 feet south of the north curb of Belmont Avenue.

Plaintiff testified that he was driving his 1936 Plymouth automobile west on Belmont Avenue; that he got onto Belmont...