Judgment affirmed on writ of error; appeal dismissed.
Mr. CHIEF JUSTICE SCHAEFER delivered the opinion of the court:
This action was brought in the superior court of Cook County to recover damages for injuries allegedly suffered as the result of a collision between the defendant's streetcar and an automobile from which the plaintiff, a minor child, was alighting. There was a trial and verdict for plaintiff in the amount of $75,000. Motions for new trial and for
On appeal to the Appellate Court the defendant did not dispute the negligent operation of the streetcar, but contended that the verdict was excessive in that it included damages for certain convulsive seizures of the plaintiff which began some ten and a half months after the accident. Defendant argued that the evidence did not show that these seizures were caused by the accident, and that in fact they were the product of a congenital condition. The Appellate Court agreed that the size of verdict indicated the jury had awarded damages for these seizures, and that in this respect the verdict was contrary to the manifest weight of the evidence. The court therefore reversed the judgment of the trial court and remanded the cause for a new trial on this issue. Olson v. Chicago Transit Authority, 346 Ill.App. 47.
Plaintiff moved for a rehearing and to vacate the judgment of the Appellate Court as beyond its constitutional powers. Upon denial of this motion plaintiff filed a petition for leave to appeal to this court, and subsequently sued out a writ of error to review the judgment of the Appellate Court. The petition for leave to appeal was allowed, and the two causes consolidated.
In both causes the plaintiff asserts that section 92 (3) (b) of the Civil Practice Act (Ill. Rev. Stat. 1951, chap. 110, par. 216(3) (b),) is unconstitutional insofar as it permits the Appellate Court to reverse a judgment entered upon the verdict of a jury, and remand for a new trial on the ground that the verdict is against the weight of the evidence. The alleged constitutional defects are (1) that the action of the Appellate Court violates the right of trial by jury guaranteed by article II, section 5, (2) that it amounts to an exercise of original jurisdiction in violation of article VI, section II, and (3) that section 92(3) (b), read in conjunction with section 75(2) (c), (Ill. Rev. Stat. 1951, chap. 110, par. 199(2) (c),) effects a discrimination between appellant
The first contention was rejected in Corcoran v. City of Chicago, 373 Ill. 567, after an extensive consideration of the history of trial by jury at common law. The Corcoran case was identical with this, except that the Appellate Court had there stricken the remanding clause on the plaintiff's motion, supported by an affidavit that another trial would involve no new issues and no new evidence. That difference is of no significance on the present issue. The plaintiff apparently concedes that the Corcoran case is controlling, and asks us to reconsider that decision. She asserts that the court's conclusion in the Corcoran case, that the practice at common law sanctioned the setting aside of verdicts by reviewing courts on the basis of the weight of the evidence, overlooked the qualification that this was done only with the concurrence of that member of the court who had been the nisi prius judge in the case. The fragmentary character of the historical evidence makes it difficult to decide the truth of this assertion. (The authorities relied upon by plaintiff appear in 19 Chicago Kent Law Review 91.) Assuming it to be correct, however, we think that the asserted qualification is not one of those essential attributes of jury trial which the constitution preserves.
"It is well settled that the object of a constitutional provision guaranteeing the right of a trial by a jury is to preserve the substance of the right rather than to prescribe the details of the methods by which it shall be exercised and enjoyed." (People v. Kelly, 347 Ill. 221, 224.) At least since Wood v. Gunston, Style 466, 82 Eng. Rep. 867, decided in 1655, judges at common law reviewed the verdicts of juries, and set them aside when contrary to the manifest weight of the evidence. It is the fact of judicial review of the verdict in terms of the weight of the evidence which concerns the substance of the right of trial by jury, rather than the precise composition of the court which does
The contention that the Appellate Court has exercised original jurisdiction is without foundation. The only action taken by that court was to reverse the ruling of the trial judge upon a motion first presented and decided in the trial court. In this case, therefore, the Appellate Court was not exercising original jurisdiction by passing upon a matter not ruled upon by the trial court in the manner found objectionable in Goodrich v. Sprague, 376 Ill. 80, and Scott v. Freeport Motor Casualty Co. 379 Ill. 155. See Goodrich v. Sprague, 385 Ill. 200.
In support of her position plaintiff cites Hecker v. Illinois Central Railroad Co. 231 Ill. 574. There a statute was held invalid which permitted this court to review both the facts and the law in a case coming from the Appellate Court if that court, without remanding for a new trial, had reversed
In Hayward v. Sencenbaugh, 235 Ill. 580, a judgment for plaintiff in the trial court was reversed in the Appellate Court and the cause remanded. Plaintiff thereupon appealed to this court under a statute permitting such appeal only if the appellant should stipulate that upon his defeat in this court a final judgment should be entered against him here, rather than a judgment merely affirming the decision of the Appellate Court. The provision was held invalid as a discrimination against the appellant, despite the fact that the issue was raised by appellee on a motion to dismiss the appeal.
The Hayward case thus resembles this case. In each an appeal otherwise precluded for lack of finality is to be allowed if the appellant agrees to forego his right to a new trial. Under the earlier statute this was done by stipulating that this court might render final judgment against appellant, whereas under the present act appellant proceeds by moving to strike the remanding clause from the judgment of the Appellate Court.
To the extent that the statute involved in the Hayward case permitted this court to enter a judgment other than one affirming or reversing a judgment rendered below, it presented a special problem akin to that raised in the line of cases relating to the power of the Appellate Court to
We need not consider plaintiff's attack upon the distinction between the power of the Appellate Court under section 89 of the Civil Practice Act (Ill. Rev. Stat. 1951, chap. 110, par. 213,) to reverse without remanding where the trial court proceedings were without a jury, and that court's more limited power in reviewing jury cases. (Compare Ebbert v. Metropolitan Life Ins. Co. 369 Ill. 306, with Mirich v. Forschner Contracting Co. 312 Ill. 343.) That section is not involved in this case, and, in any event, the distinction is one which favors the plaintiff here.
The constitutional points raised on the writ of error do not warrant reversal of the judgment of the Appellate Court. Plaintiff also argues that the verdict was not in fact contrary to the weight of the evidence, and asks us to reverse on that basis. Section 92(3) (b), however, prohibits us from reviewing the question of fact arising upon the weight of the evidence. (Shaw v. Courtney, 385 Ill. 559; Corcoran
Plaintiff did not comply with the requirements of section 75(2)(c) of the Civil Practice Act, (Ill. Rev. Stat. 1951, chap. 110, par. 199(2) (c), and thereby make final the judgment of the Appellate Court. (Lees v. Chicago and North Western Railway Co. 409 Ill. 536, 541; People v. Board of Education, 275 Ill. 195; Riley v. Lamson, 253 Ill. 258.) That the new trial is partial only does not alter the situation, since the plaintiff is not aggrieved by that part of the judgment which is final. (Sanche v. Mahler, 219 Ill. 349.) It follows that the petition for leave to appeal was improvidently allowed, and the appeal must be dismissed for want of jurisdiction.
Judgment affirmed on writ of error; appeal dismissed.