Forrester v. Patrick

520 N.E.2d 1188, 167 Ill. App. 3d 105, 117 Ill. Dec. 837, 1988 Ill. App. LEXIS 235
CourtAppellate Court of Illinois
DecidedMarch 4, 1988
Docket86-2605, 86-3477
StatusPublished
Cited by12 cases

This text of 520 N.E.2d 1188 (Forrester v. Patrick) 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
Forrester v. Patrick, 520 N.E.2d 1188, 167 Ill. App. 3d 105, 117 Ill. Dec. 837, 1988 Ill. App. LEXIS 235 (Ill. Ct. App. 1988).

Opinion

PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

This is an appeal of the denial of defendants’ post-trial motion for judgment notwithstanding the verdict in an action for damages as a result of an accident in which a semitractor-trailer collided with plaintiff’s automobile. Defendants also appeal the denial of two other post-trial motions brought pursuant to Supreme Court Rule 305 (107 Ill. 2d R. 305) which sought to stay enforcement of the judgment rendered at trial pending appeal.

We affirm. The following is pertinent to our disposition.

Plaintiff, Danny Forrester, filed a two-count complaint against defendants, K. D. Patrick (Patrick) and Bid “D” Cartage Company, following an incident on the Calumet Expressway involving plaintiff’s automobile and a semitractor-trailer driven by defendant Patrick, an employee of Big “D” Cartage Company. Count I of the complaint alleged a collision occurred between the two vehicles and sought damages against both defendants. Count II of the complaint realleged the allegations of count I, and sought damages against Patrick, individually, based on willful and wanton conduct.

At trial, testimony was presented that the truck, driven by defendant Patrick, initially struck plaintiff’s automobile in an attempt to pass plaintiff while the truck was travelling north on the left shoulder of the 1-94 juncture leading into the Calumet Expressway. Defendant Patrick, apparently in response to plaintiff’s attempts to have the truck pull over to the side of the road, began to force plaintiff, now on the truck’s left, across several lanes of highway, until the truck again struck plaintiff’s car, causing the car to strike the left guard rail. Defendant Patrick continued to pursue plaintiff. At approximately 104th Street, a vehicle pulled into plaintiff’s lane, forcing plaintiff to slow, whereupon plaintiff’s car was struck from the rear by the truck.

Following completion of the trial on June 5, 1986, the court submitted six possible verdict forms to the jury. Pursuant to verdict form D, the jury awarded plaintiff a total of $155,250 for negligence against both defendants on count I, and $10,000 in punitive damages against defendant Patrick, individually based on count II for willful and wanton conduct.

On July 3, 1986, defendants filed a written post-trial motion, subsequently amended at the hearing thereon on August 21, 1986, asking the court to enter judgment notwithstanding the verdict as to count I pursuant to section 2 — 1202 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1202.) Defendants contended that verdict form D improperly permitted the jury to find defendant Patrick guilty of both negligence and willful conduct, legally mutually exclusive theories of recovery.

In response, plaintiff argued that at a conference in chambers on the morning of the final day of the trial, defendants’ only objection to the instructions and verdict forms concerned the language of verdict form F, which provided, as to count II, for a reduction of plaintiff’s damages based on plaintiff’s comparative willful conduct. Plaintiff further argued that a verdict containing findings of negligence and willful and wanton conduct, as provided in the form used by the jury, is not necessarily legally inconsistent. The court denied defendants’ motion. A timely notice of appeal was filed on September 19, 1986.

Subsequently, on November 5, 1986, defendants filed a motion asking the trial court to approve the posting and filing of an insurance policy, issued to defendant Big “D” Cartage by Protective Insurance Company, in lieu of an appeal bond. Defendants moved that such filing operate as a stay of enforcement of the judgment pending appeal pursuant to Supreme Court Rule 305. The insurance policy contained a per person liability limit of $100,000. The court determined that the policy limit was inadequate to stay enforcement of the judgment and denied defendants’ motion on November 6,1986.

On November 13, 1986, defendants brought a second motion to stay enforcement of the judgment pursuant to subsection (b) of Supreme Court Rule 305, allowing for the stay of enforcement of money judgments not otherwise stayed in compliance with subsection (a) of the rule. The motion recited that defendant Big “D” Cartage was dissolved and that defendant Patrick had insufficient assets to pay a premium on a supersedeas bond over and above the limit of the insurance policy. Defendants stated that the stay of enforcement of the judgment was necessary to allow defendant Patrick to appeal the jury verdict without being subject to “possible” harassing collection procedures. The trial court denied this motion on the same basis as recited in the November 6, 1986, order.

On December 10, 1986, defendants filed a separate notice of appeal with respect to the orders of November 6 and November 13, 1986, denying a stay of enforcement of the judgment. The appeals have been consolidated.

Opinion

On appeal, plaintiff points out that defendants’ only objection was directed at verdict form F, not form D, the form ultimately used by the jury. Plaintiff states, additionally, that defendants never asked the trial court to instruct the jury to make a finding only as to either count I or count II. Plaintiff contends the failure to object effectively waived defendants’ opportunity to move for judgment notwithstanding the verdict, below, or to now raise the issue of an improper verdict on appeal.

Defendants do not dispute their failure to object to verdict form D, but argue, instead, that an objection was not essential to preserve their right to contest the denial of judgment notwithstanding the verdict, since the verdict form contained mutually exclusive, and collectively unsupportable, theories as a matter of law.

Generally, a party waives the right to later object, on appeal, to forms of verdicts submitted to a jury, where no objection was raised at the time of submission. (Miller v. Green (1951), 345 Ill. App. 255, 103 N.E.2d 188.) However, in exceptional instances, such as where a single verdict form does not reveal which of two causes of action support the jury’s finding, a party’s subsequent motion for a new trial may preserve assigned errors respecting the verdict form. Magnani v. Trogi (1966), 70 Ill. App. 2d 216, 218 N.E.2d 21.

In the instant action, defendants have failed to preserve the issue of a legally inconsistent verdict form under either method above. First, the record reveals that defendants’ sole objection at the instruction conference was directed toward a verdict form other than that ultimately used by the jury. Defendants made no objection whatsoever to Form D, used in rendering the verdict in the trial below. More importantly, even if the instant case presented one of the exceptions to the general waiver rule, and permitted the issue to be first raised in a post-trial motion for a new trial, defendants failed to make the requisite motion.

On July 3, 1986, defendants filed a motion styled “Motion for a New Trial” pursuant to section 2 — 1202 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch.

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Bluebook (online)
520 N.E.2d 1188, 167 Ill. App. 3d 105, 117 Ill. Dec. 837, 1988 Ill. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forrester-v-patrick-illappct-1988.