Anderson v. Smith

415 N.E.2d 643, 91 Ill. App. 3d 938, 47 Ill. Dec. 638, 1980 Ill. App. LEXIS 4120
CourtAppellate Court of Illinois
DecidedDecember 22, 1980
Docket79-2126
StatusPublished
Cited by25 cases

This text of 415 N.E.2d 643 (Anderson v. Smith) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Smith, 415 N.E.2d 643, 91 Ill. App. 3d 938, 47 Ill. Dec. 638, 1980 Ill. App. LEXIS 4120 (Ill. Ct. App. 1980).

Opinion

Mr. JUSTICE HARTMAN

delivered the opinion of the court:

This appeal proceeds from a jury verdict and judgment entered thereon in a personal injury action in which plaintiff Gerald Anderson brought suit for injuries he sustained as á result of a collision between his station wagon and defendant Donald G. Smith’s pickup truck in front of defendant Joseph Colucci’s restaurant, near the intersection of Burnham Avenue and 196th Street in southern Cook County. In counts I and II of his complaint, Anderson charged Smith and Colucci with negligence, and in count III thereof, he charged Smith alone with wilful and wanton misconduct. The jury found Smith guilty of negligence 1 and assessed damages at $13,000; however, it answered in the affirmative a special interrogatory finding Anderson guilty of contributory negligence. On the verdict form with respect to the wilful and wanton count, the jury found in favor of Anderson but assessed his damages at “$ 0.” and awarded him “$ 0.” damages. The jury answered two additional special interrogatories: on one, it found Anderson not guilty of contributory wilful and wanton misconduct; on the other, it found Smith guilty of wilful and wanton misconduct.

The trial court entered judgment for Smith and Colucci on the negligence counts and entered a finding of plaintiff’s damages in the amount of $13,000 on the wilful and wanton count in substitution for the jury’s assessment of “$ 0.” damages. Smith brings this appeal from the jury’s answer to the special interrogatory finding him guilty of wilful and wanton misconduct and the judgment entered thereon, and from the order denying his post-trial motion. He seeks reversal and entry of judgment here in his favor or, in the alternative, reversal and remandment of the cause for a new trial. For the reasons set forth below, we reverse and remand for a new trial.

Only those facts essential to an understanding of the case and disposition of the appeal need be set forth. On December 10, 1977, at about 7:30 p.m., Anderson, his wife and their son, who had been patrons at Colucci’s restaurant at the southwest corner of the intersection, were in their automobile turning northward from the restaurant’s only driveway onto Burnham. Although not then showing, the remains of previous heavy snows were concentrated in large piles along both sides of Burnham, particularly at the northwest and southwest corners of 196th Street. The latter street formed a “T” intersection with Burnham, extending westward from the west side of Burnham. Both streets were two-lane roadways, each about 15 feet in width. The driving surfaces on each street were icy and their widths were narrowed by virtue of the snow piled alongside. There were no street lights; however, the lighting in Colucci’s parking lot radiated across the roadway. Every witness but Smith agreed that driving conditions were hazardous.

As Anderson proceeded into his northbound turn and approximately all but one-eighth of his vehicle had traversed the southbound traffic lane, it was struck at the center of its left side by the left front of Smith’s southbound vehicle traveling at speeds estimated at from 50 to 60 miles per hour. Smith had just passed two other southbound vehicles within two blocks of the accident site; had been moving back into the southbound lane from the northbound lane; and had struck the snowbanks at the northwest and southwest corners of the intersection immediately prior to striking Anderson’s car. Twelve witnesses testified at the trial and the parties submitted 31 exhibits for the jury’s consideration. The verdicts, judgment and order were thereafter entered as described earlier in the opinion.

A threshold consideration in this appeal is a deficiency in Anderson’s brief. In his appellee’s response to Smith’s argument he merely states: “As to defendant’s first argument, it is perfectly clear that the jury found the defendant, Smith, to have been guilty of wilful and wanton misconduct. It is further evident that the jury intended the plaintiff recover $13,000 in damages and that they simply used the inappropriate verdict form and the court so reflected the jury’s intent in correcting the same.” There is no further discussion, argument or citation of authority in support thereof. Bare contentions such as these may be deemed waived under Supreme Court Rule 341(e)(7), (g) (Ill. Rev. Stat. 1979, ch. 110A, pars. 341(e)(7), (g)). (See, e.g., Brinkman & Company-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 694, 394 N.E.2d 1221.) Because Rule 341 states an admonition to the parties and is not a limitation upon our jurisdiction, we may, in the exercise of our responsibility for a just result, ignore considerations of waiver and decide a case on grounds even though they are not properly argued by a party. (Hux v. Raben (1967), 38 Ill. 2d 223, 224-25, 230 N.E.2d 831; Occidental Chemical Co. v. Agri Profit Systems, Inc. (1975), 37 Ill. App. 3d 599, 603, 346 N.E.2d 482.) We therefore consider the following point raised on its merits irrespective of Anderson’s disregard of the rule.

Smith contends that the trial court erred by transferring the damage figure entered by the jury in the negligence count, and applying it to the wilful and wanton misconduct count, in which the jury awarded “$ 0.” damages. Anderson relies upon the general rule of law that a court may correct a manifestly irregular or defective verdict so that it will conform to the intention of the jury where that intention is clear.

A jury verdict under challenge must be examined toward the end of ascertaining the jury’s intention in returning the verdict. If the verdict is supported by the pleadings and evidence, it must be liberally construed and may be molded into form and made to serve, unless it is unclear or there is doubt as to its meaning. (Manders v. Police (1970), 44 Ill 2d 511, 517, 256 N.E.2d 330; Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127,. 148, 383 N.E.2d 929; Western Springs Park District v. Lawrence (1931), 343 Ill. 302, 310-11, 175 N.E. 579.) An amendment is permissible, however, .only when the defect is one of form, rather than substance. (Cokinis v. Maywood-Proviso State Bank (1980), 81 Ill. App. 3d 1057, 1066, 401 N.E.2d 1077; Goldbeck v. Cieslik (1955), 5 Ill. App. 2d 529, 534, 126 N.E.2d 417.) A trial court should not amend a verdict in order to reach a determination that the court believes the jury ought to have made; an amendment must reflect only what the jury clearly intended the verdict to be. Roadruck v. Schultz (1948), 333 Ill. App. 476, 77 N.E.2d 874.

The jury’s verdict on the wilful and wanton count of Anderson’s complaint was a finding for Anderson and against Smith.

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Bluebook (online)
415 N.E.2d 643, 91 Ill. App. 3d 938, 47 Ill. Dec. 638, 1980 Ill. App. LEXIS 4120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-smith-illappct-1980.