*1 Haizen, Jack Plaintiff-Appellant, v. Yellow Com- Cab pany, Corporation, John Neighbors, E. Downs, Thomas J. Administrator of the Estate of Arthur H. Saunders, Deceased, Defendants- Appellees. 48,619.
Gen. No.
First District, First Division.
May 13, 1963. denied Rehearing 5, 1963. June *2 Frank E. J. Howard and Scarpelli, Philip William H. Arpaia, of Chicago, appellant. Michael A. and Allen Wines,
William C. Gerrard S. Gerrard of & Chicago (Jesmer Harris, counsel), for Yellow Cab appellee. Company,
MR. PRESIDING JUSTICE BURMAN delivered the opinion of the court.
Plaintiff this action in Circuit Court brought of Cook County injuries to recover for sustained when the- cab in which hе passenger was a collided another car. Joined as defendants were the owner of *3 the cab, the Yellow Cab the driver Company, John E. cab,. and the owner and driver of Neighbors, the other Arthur H. car, Upon Saunders. the death of Mr. Thomas Saunders, Downs, J. administrator of the estate, Saunders’ was substituted as codefend- ant.
The accident occurred intersection at the of Archer Avenue Pulaski Road. The was cab headed a southwesterly direction on about make Archer, a left turn onto Pulaski, when it collided Saunders’ which had been headed in car, a northeast- direction erly on Archer. The collision rendered plain- tiff unconscious and he his injuries sustained neck, shoulder, arm and hand. Prior to this incident plain- tiff had been a employed as sales at a manager yearly salary $25,000. Plaintiff was unable to return to work for several weeks the accident. after When he was able return to work his him injuries prevented from continuing prior employment, necessitating new $18,000. at a employment Plaintiff’s salary proven expenses medical were over $475. at
At trial each driver contended the other was fault. The Yellow Cab jury’s Company found A ver- liable and assessed at damages guilty $500. dict was returned as defendant Downs, Neigh- but bors was not verdict even though mentioned verdict forms had been provided.
After the verdict was made sev returned, plaintiff post-trial eral motions. new requested a trial as He to Downs presented alternative as to motions Yellow either Cab, for a new trial alone damаges as to or for a new trial All as to all issues. motions were denied and appeal this was taken.*
Plaintiff filed his notice of on July 1961, and immediately encountered difficulties. These difficulties arose from the fact only stenog rapher present during the trial was de employed by fendant and although plaintiff willing to bear the expense, he was denied a copy transcript. Plaintiff’s counsel was kept busy then for the next few months either before mo appearing or presenting tions to this court and the trial in an judge effort to secure a transcript so as to be able to prosecute the appeal. The trial judge, visiting jurist, had returned to DeKalb this time. Both the trial judge and this court denied plaintiff’s requests either an order directing stenographer furnish him a copy of the transcript for an order him allowing to take the stenographer’s deposition. then Plaintiff directed his efforts toward compiling bystander’s bill of exceptions a narrative containing concerned *4 with primarily the issue of damages. This bystаnd er’s is report the only record before us on this appeal. * No other were made judge. motions before the trial Yellow objection Cab made jury’s finding the guilty verdict returning guilty against without also a driver. the An appeal perfected against only was Yellow Cab ref- further opinion erences defendant in company this will mean the cab specified. unless otherwise
333 After we denied motions plaintiff’s for an order provide the of the directing stenographer copy and after transcriрt, briefs were filed, handed down its in opinion Court Tansor v. Checker Taxi Ill2d 188 659. Co., 27 the Su There, held in such preme Court that situations an this, be order should that a granted directing copy appellant. be transcript given were, therefore, We in plaintiff’s allowing error not motions.
Defendant first challenges the timeliness adequacy report filed proceedings plain As indicated tiff. encountered previously, plaintiff many difficulties perfecting appeal was request forced to numerous extensions of timе. After examining record, we conclude the filing that was report proceedings timely and while we report defendant that is agree incomplete, feel it is sufficient to enable us we to decide the case on the merits. objection
Plaintiff’s on is primary this of the award. Defendant adequacy contends that the ease should the merits of reached, judg affirmed ment should be since the award of is, $500 more contends, defendant than plaintiff should $500 argument have received. This on based the fact fаiled to return a verdict as to the driv jury er of the cab and this is, law, to a find equivalent R. Wabash Co. v. Ill ing guilty. Keeler, 127 Therefore, 265. defendant App insists, judgment entered it was erroneous its since liability predicated was on the of its solely negligence driver, who found not guilty. Hayes Chicago Tel. Co., Ill NE 1003; Toledo, 218 Devore v. P. & W. Railroad, App2d 409, Ill NE2d 883. Defend ant it has waived this recognizes, however, ar neither motion making timely after gument verdict was prosecuting returned nor appeal, yet *5 judg- do more than affirm it insists we should saying, effеct, Defendant is ment entered below. objec- objection, plaintiff’s it waived its that since cannot ac- should also be considered waived. We tions cept this. plaintiff’s agree contention
We must inadequate. palpably This was award $500 barely pocket expenses in award exceeds the out of essentially, is, for treatment. There curred medical wages. pain suffering no award for and or for loss of plaintiff proved liability, If he was to entitled recover plaintiff items also. caused these The collision against twisting be thrown the bulkhead of cab, causing bleeding scalp neck, his from and mouth injuring and his arm. He was return work unable to to only period for a of about two months and then on part required a time basis. he was seek Further, employment salary. new aat lower plaintiff’s injuries The nature and extent of were orthopedic specialist, testified to Dr. S. Siffert, orthopedic Dr. and geon. Donald Miller, S. certified sur- x-rayed injuries plaintiff’s Dr. Siffert or- plaintiff dered to wear a cervicаl collar and use a traction harness while confined to bed. Miller Dr. injuries permanent testified were he injuries linked to the accident. jury presented
The a case in which it liability against find could or one more of de three liability It fendants. assessed the cab com pany, public plain which, as a service carrier, owed highest degree jury tiff the Once care. assessed liability duty compute damages it became its ac cording presented to the evidence and the in court’s they manifеstly structions. This failed to do. It especially reviewing true that courts, are re courts, jury’s findings luctant overturn the as to dam ages, upheld but “an award when cannot serious
injuries amount are sustained nominal small *6 perma especially injuries is when the are awarded, Damages, . . .” the na nent; ILP, sec 162. Given plaintiff’s injuries, amount of ture extent the pocket expenses, wages, loss of it would out and the appear jury ignored evidence, the the failed that either compromised to follow the court’s question clearly instructions, or liability liability dаmages. were If against plaintiff was defendant, found then adequately compensating him entitled to an award proven losses. not liable, If defendant were against no then award should been assessed it. have clearly is record shows the It true when the that also liability, jury properly question decided Stroyeck damages court will reverse as to alone. v. App2d Staley Mfg. Co., Ill 76, A. E. incomplete 689. record However, on basis of say liability There us, before we cannot clear. is all must be a new as to issues. fore, there trial question a new trial ordered the arises Since is as as will be able to raise, to whether defendant against to an the fact there was no it, bar action Neighbors, thereby driver, as claim verdict to the equivalent finding guilty. In that this to a of not is complaint charges plaintiff’s company as sofar independent negligence, acts of the doctrine of estoppel be used. we feel However, cannot precluded entirely raising is from that defendant issue of previоusly, estoppel. As stated defend we any objection might it have to the ant has waived finding guilty though driver as to even guilty. To found allow it raise the issue when not injustice. retried would be a manifest the matter Chicago in & A. R. As court stated Voorhees estoppel depend App “[a]n does Co., principle justice, upon but the broad technicalities only party apply when the has had his and it can and an to establish his day opportunity claim.” permit estoppel operate To in the plaintiff instаnt action de- would, actuality, him of his in court. prive day
To allow the prior result in the trial operate a bar would leave us with no alternative but to af- firm the judgment entered We would not be below. able to reach the merits of cause though even the case is properly before this court on There appeal. would be, effect, we appeal. Further, would affirming a judgment both parties this appeal state to be erroneous, albeit for different reasons. Neither party would receive substantial justice under such a circumstance.
The entered the judgment Yellow Cab Com- pany reversed and the cause is remanded for a new trial.
Judgment reversed and cause remanded with direc- tions.
MURPHY, J, concurs.
ENGLISH, J, dissenting:
I must dissent for a number of reasons.
This court’s opinion reverses the trial court’s judg- ment the (and jury’s as verdict) because damages, the have majority become by presumably convinced — the manifest of the weight evidence —that the damages awarded were For inadequate. this court thus to have considered and weighed the evidence, a proper record of the testimony must first have been presented. This was not done.
Rule of this court (the same, in substance, as Rule 36 of the Supreme Court) provides for evi preserving dence questions by the of filing a report of proceedings. and Paragraphs (c) of (d) the rule make it perfectly I clear, should think, that a “certificate of correctness” be con before report to such a will
must be attached * The certified.” “duly filed and properly sidered as judge, the trial by made would be ordinarily certificаte of cor a certificate in there must be but, event, any before this of the trial court judge rectness aby to review authority, or even would have justification, In case bar there on evidence. the at matters based the “re in record before us—no is no such document the sense, “agreed of in the port proceedings” ordinary form docu statement of facts” —but a narrative only * part: The rule reads in pertinent (b) Copies original report pro- appeal; in record on Usе of of designated ceedings report. master’s All of the record so parts or by praecipe] incorporated appeal the in record on shall be [in copies by However, original report certified of clerk. judge, proceedings trial, of the trial whether at the certified report a condensed complete stenographer’s in the form of a or shall, statement, original report requested if or the master’s appeal praecipe, incorporated in the record on lieu of certified the trial court. copies, unless otherwise ordered filing report proceedings. The re- (c) Certification trial, consisting rulings of the port proceedings of the at the upon rulings judge, testimony, trial all other matters which were judge the trial which the made, any proceedings other before incorporate appeal, in the record on shall be appellant desires to judge his by and submitted to the trial procured appellant impossible correctness, or that is successor if certificate of district, disability from the sickness or other because of the absence any judge court, filed, duly judge, other then to days after the notice certified, court within trial *8 shall have been filed. report proceed- of a In lieu of (d) Agreed statement of facts. stipulation agree upon a statement may by
ings, the written parties controversy present the statement and material to of the facts certify report to to the cоrrectness any judge qualified to of of correctness, and case, for his proceedings in said certificate of days trial within 50 after duly certified, in the same, file the filed, subject pro- been the same have appeal shall the notice of regarding filing, set forth hereinbefore extension visions as to (Emphasis supplied.) proceedings. of the report of a 338 “bystander’s majority (which, refer as a ment any wholly lacking exceptions”), which is bill of judge by any trial of correctness certificatiоn is so substance this document court. In incomplete form both * inadequate on face as not war its I ma believe the rant of correctness, a certificate jority’s regard much. concede as comments in that any certification, and But, in there is no such event, all document, cannot be considered at therefore, ignore intentionally of this court unless we the rules properly this, course, do, court. And we cannot as Supreme repeatedly held the court have the forcе of law. Court has that rules
(Dept. of Finance v. Shel People Byrnes, 256, 863; NE2d 4 don, 257, 44 Depart 113, Thillens, Ill2d 109, 247; NE2d Inc. v. ment of Financial 24 Ill2d Institutions, 115, 180 110, 494.) NE2d judge signed purport
The trial had a certificate, the merely report proceedings of which was had presented finding been to him. Later, that he had signed misapprehension,” judge it “under a the trial by agreement parties directing entered an order signature expunged. that his to the document be Still signed “bystander’s later, he another certificate to the general bill” certifying only the sаme terms as first certificate, report presented that the been had say, the court. Needless to of correctness” this is not the “certification required by the rule.
In Tansor v. Taxi Checker Co., Ill2d deep Court demonstrated its necessity concern over the for certification of the cor report proceedings (pursuant rectness of the to its 36) by very Buie its consideration well case, * example, purport For it does not any to include testimony elicited on For any cross-examination. does it include rulings by judge. the trial *9 page by court noted at reached. The
as the decision 253: judg- plaintiff review of a . . Here the seeks
. notwithstanding The the verdict. ment entered sufficiency introduced is determi- evidence placed can be and the evidence issue, of this native through report only reviewing a before a supplied, report cer- proceedings. can Unless judge by our in accordance with trial tified adequate appel- plaintiff be denied Rule, the will supplied.) (Emphasis late review. of man in the court’s writ of thе directions
And one report judge certify required trial “to damus reporter.* proceedings” prepared the court to be a “con- bar, in the case at case, In the Tansor as pre- “bystander’s been bill” had statement” or densed approved judge but had not been sented to the trial by him it inaccurate and incom- he considered because plete. been of correctness had not If certification Supreme necessary evidence, the to a review of the the case not have heard or decided Court would did.
I that the record this conclude, first, therefore, proper report of the evidence court does not contain question which we could reverse on the on the basis of damages: majority opinion places The this court in position having reversed the trial court on may may weight of evidence which have been judge. This, the same as that considered the trial alarming gives one which me, result, to this argument, mention *At oral was made Court’s having only days opinion handed down its in the Tansor ease a few expressly any plaintiff before. disavowed interest Counsel report proceedings the matter of the under pursuing further authority of the Tansor decision. *10 importance beyond that attributable to decision case issues raised in the itself. majority liability,
On the issue of I believe that opinion compounds It mentions that the nar the error. report primarily the issue rative is “concerned incomplete.” damages,” report Then, and is that “thе scope report this is limited in because uncertified so incomplete respects, majority in other conclude say liability they that hence clear,” “cannot is liability damages. a new is trial ordered as to both reasoning, I am unable to let alone understand this agree I with it. should that reversal of think, rather, liability on the basis the evidence would require weight us to find that the manifest of all clearly liability. evidence established that there was no App2d As we stated in Gordon, Jackson v. 37 Ill 41, 44, “(S)ince contrary 184NE2d 805: a result to the verdict clearly properly is evident, it cannot be set aside (Romines Freight, this court. v. Illinois Motor 21 Inc., App2d Ill 158 380, 385, 97; NE2d Paul Harris Furni 275.)” ture v. 10 42, Co. Ill2d 139 NE2d Morse, 28, any Furthermore, neither has liability. side indicated desire for a trial on new the issue of Defendant filed cross-appeal. appeal specifically Plaintiff’s notice of prays grant that this court him a new trial “on only.” damages issue of brief, likewise, His makes specifically request.* parties same limited For the thus appeal, to limit the issues on and to waive other relief, keeping spirit is in with both the letter and the my Court Rule 33. It is belief, further, appeal, being jurisdictional, notice limits the scope part judg review this court to the of the appeal (McCottrell which ment from v. has been taken. App2d Benson, Ill 367, 370, 178 NE2d Ko- 144; * One result of this limitation of the appeal issues on was that we briefed were not either side on the issue liability. NE2d 429, Lines, App Surface Chicago
lacz v. 116, 38 Ill App2d Elec. Appleton Co., Janecko 188; Illinois Annotated 662; Smith-Hurd Notes, Ch and Practice Statutes, Historical 101.33.) § which record, insufficiencies from the
Apart been of that record has to, I referred the abstract have of Rule 6 of this disregard such flagrant prepared present that it does not 38) Rule Court (Supreme briefs. As an ex in the argued matters sufficiently from the abstract ascertain impossible ample, the notice of motion and post-trial to the regard *11 in was accordance appeal perfected not the whether or the Practice jurisdictional requirements with the Under 110, 74(3) 76(2).) c Stats, Rev (Ill §§ Act. in was dismissed Clark the such circumstances NE2d 348. sim 135, 134 Taking App2d 10 Ill Titone, v. 23 Ill Fazio, App2d 106, 110, in v. Campbell ilar action our said: “However liberal 579, 161 that court NE2d construction of Rule 38 of the to be in courts tend may court, Rule of this there must of Court and the compliance rules, substantial with necessity be so emasculated the re will become that the abstracts will be to search the record compelled viewing also v. Industrial Hayes for facts.” See Commis the 940. 272, sion, rule, applied the to majority recognize The this failure to return the a verdict as to jury’s that case, in equivalent finding cab driver favor. that an acknowledge principle employer also They be found liable the acts of properly cannot its agent himself is found be if free from agent negli citing this Devore regard, Toledo, & gence P. 409, Ill Railroad, App2d 174 NE2d W. the court stated that this rule is in which axiomatic. I The agree. these statements opinion With majority that the doctrine of however, says, estoppel then aris- employed ing nоt he could of this situation out plaintiff’s com- “(i)nsofar as on a new trial defendant independent charges company acts plaint principle, agree but negligence.” with this I also application I can find because here, with its against charge com- complaint the cab whatsoever upon negligence predicated pany is not which driver. majority trial, de-
Finally, on a new that, state of es- raise the issue allowed to fendant should not be negligence toppel by acts оf as to the even imposition charged cab driver. With required to be of such restriction defendant would part in undeserved severe, take the new trial under a handicap. presum- and ably, Defendant would, unwarranted permitted tending to introduce evidence negligent, its show that permitted driver was not and it would be argue such was the it would case, but permitted very pre- not be viously to show that this issue had adjudicated finally
been the verdict and Judgment in its driver’s favor. At the same time, presumably, would, be forbidden to introduсe evidence present proposition or otherwise to negligence part on the of the driver of the other vehicle was the cause of exclusive the accident. And this, because judgment verdict and op- favor of that driver would *12 estoppel. erate as an strange proceed- Such a new and ing my opinion, in would, be most unfair, and unbe- judicial coming process. the justified, Yet, this result is say majority, principle on “the justice” broad ; injustice”; to avoid “manifest and because defendant right estoppel waived its to the feature of its defense by appealing. I fail see to willing the waiver. Defendant was to
pay judgment amount it rather than always election open which should —an any litigant. Now, prevail- however, the circumstances
ing choice basis of which this time, at the and on the changed. Only when the was judgment are about to be made, by defendant would is set aside this court estoppel or assert the defense have occasion by need to very yet this court moment at that verdict, impose preventing exercis- it from a restriction would ing right doctrine It is true that the its to that defense. operates estoppel by its defense, as a but by against a claimant characteristic is it works emplacement orig- his claim. Plaintiff’s of a bar to judgment merged claim into which defend- inal was pay. judgment willing After that is set ant plain- then for the first time could it be said that aside, opposition making in which tiff would be a claim interpose judicata might of res defendant the defense estоppel by or the verdict in favor of its driver. quotation opin
Neither nor the from the the decision App Chicago ion in &A. R. 208 Ill Co., 86, Voorhees majority, supports 95, cited their conclusion. relationship principal-agent The was not involved opinion case, and the makes no declaration from might logically permit which it be deduced that to es toppel deprive plaintiff in the case at bar would day principle justice,” And in court. as to “the broad precisely it is on that foundation that the law has estoppel by erected the doctrine of verdict as it relates respondeat superior. leading Harding In the case of E. Charles v. Co. Harding, 186 NE Court, considering principle judicata, page of res said at 427: principle estoppel
. . . This is sometimes called estoppel equally verdict, and the available to plaintiff party, support either of his action or of his defense, the defendant when the circum- adjudication warrant it. Whether stances re- goes estоppel single question lied on as to a *13 questions case, all the involved funda- principle upon that allowed is mental justice which is public policy a mat- alike demand that questions, consisting many ter, whether one or solemnly adjudicated which has been in court competent jurisdiction finally be deemed shall conclusively subsequent litigation any settled in be- parties question the same where same tween questions except litigation or where the arise, proceeding purpose reversing direct setting for the or adjudication. (Emphasis sup-
aside such plied.)
Greenberg Chicago App v. Co., Cab Ill 274 involving very a ease facts similar to those in the case opinion: at This bar. court said in that (S)ince jury by its verdict found the driver guilty judgment having of the cab not been appeal having entered on the verdict and no been judgment taken, the is conclusive in favor of the company. defendant cab It is obvious if the guilty driver of negligence the cab was not driving question, the cab at the time the defend company ant cab could not be held liable on the respondeat superior. doctrine Chicago Tel. Co. Hayes, App [affirmed 121 Ill 414]. Ill There are indicating numerous other decisions defendant, on a new trial in the instant case, would perfect right have a judicata, to raise the defense of res estoppel by among City verdict. Included these are Kegerreis, of Elmhurst v. 392 Ill 195, 201, 64 Rogina Flying 450; v. Midwest Service, Inc., 325 Ill App 588, 589, Legg, NE2d 633; Antrim v.
App 482. To direct a new trial under this circumstance would not seem to me to be reasonable. light foregoing,
In of all of the I would affirm the judgment of the trial court.