Citation. 22 Ill.70 Ill. App. 2d 216, 218 N.E.2d 21 (App. Ct. 1966)
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The Plaintiff, Magnani (Plaintiff), sued the Defendant, Trogi (Defendant) on two causes of action. The First was a wrongful death action on behalf of her deceased husband. The second, an action on her own behalf to recover funeral expenses and medical costs. The jury returned a verdict for Plaintiff, but incorrectly delivered the form of the verdict. The trial judge ordered a new trial because of the error.
Synopsis of Rule of Law.
The decision of a trial court on a motion for a new trial will not be disturbed unless a clear abuse of discretion is affirmatively shown.
Facts.
Plaintiff stated two causes of action in her complaint. The first, as Administratix for the wrongful death of her husband under the Wrongful Death Act. The second, on her own behalf, for reimbursement of medical and funeral expenses incurred by her as a result of her husband’s wrongful death under the Family Expense Statute. Under the Wrongful Death Statute, any recovery had to be distributed by the court and given to the widow and next of kin in proportion as determined by the court. No apportionment was necessary under the Family Expense Statute. In the instant case, neither litigant objected to the single form verdict that was delivered by the jury, instead of individual verdicts on each count. The jury returned with a verdict for the Plaintiff and awarded her $19,000. The trial judge noted the confusion on whether the verdict applied to one count or both. In his memorandum of law, the trial judge ordered a new trial as to the liability and damages issues in the case.
Issue.
Whether the trial judge abused his discretion by granting a new trial.
Held.
No. Because the Defendant had filed his post-trial motion after the jury had already delivered its verdict, it was impossible for the judge to reassemble the jury and instruct them to correct the error in the form of verdict. Therefore, the trial judge in this instance did not abuse his discretion in ordering a new trial.
Dissent.
Defendant’s failure to object to the forms of verdict at the proper time, as well as his later failure to show that he was in fact prejudiced, compelled the court in the instant case to find that the trial court’s finding was erroneous and Defendant’s motion for a new trial should have been denied.
Discussion.
The purpose of vesting the trial judge with the power to grant a new trial is to permit him, before losing jurisdiction of the case, to correct errors that he or the jury might have made during the course of the trial. The jury had found the Defendant liable on the wrongful death claim. However, any conclusion about the jury’s verdict regarding the family expense action would have been pure speculation.
