dissenting.
Section 65 of the Civil Practice Act prescribes that the jury “must be required on request of any party to find specially upon any material question or questions of fact stated to them in writing.” Ill Rev Stats, c 110, § 65 (1963). Defendants did request and the court did submit a special interrogatory on the basic and material question of whether plaintiff was guilty of contributory negligence. The trial court entered judgment in accordance with the answer to the special interrogatory, applying the provision of section 65 that it controlled the general verdict.
My colleagues of the majority found that the special interrogatory was not improperly given. They also accepted defendants’ contentions that there was proof substantiating the jury’s answer to the interrogatory and they rejected plaintiff’s contention that the answer was against the manifest weight of the evidence. Yet they rule that the trial court erred in not setting aside the answer to the special interrogatory because the awarding of substantial damages by its general verdict and its special finding against the plaintiff on the basic material issue of due care is so inconsistent as to show conclusively that the jury was not fully instructed and was confused and unable to grasp the inconsistency.
The effect of such ruling is to say that whenever 21.02 of the IPI or any similar instruction is given regarding the burden of proof or any ultimate fact, the jury cannot be required to find specially upon any of the propositions therein mentioned; that such situation regardless of the nature of the case would require a general verdict only.
I cannot agree. Section 65 specifically contemplates inconsistency between general verdicts and special interrogatories. In fact, the authorities hold that the inconsistency under that section must be absolute and wholly irreconcilable. In Moyers v. Chicago & E. I. R. Co., 43 Ill App2d 316, 193 NE2d 604 (1963), the trial court denied the request for a special interrogatory on the question of contributory negligence and the jury returned a general verdict awarding $65,000 in damages. The plaintiff’s objection to the giving of the special interrogatory was that the issue was covered by other instructions and would be included in the jury’s verdict. The court, on page 317, held:
This objection is without merit. No matter how completely and accurately the jury is instructed, this is no ground for objection to a proper interrogatory, and, since the interrogatory must be on an ultimate issue of fact, it always is covered by the general verdict. The important point is, that the answer to the special interrogatory controls the general verdict and will nullify the verdict if inconsistent therewith.
Section 65 of the Practice Act provides that the jury may be required by the Court “and must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing”.
It is uniformly held that this provision of the statute is mandatory and the court has no discretion to refuse the request if it is on a material ultimate fact. Jones v. Phillips, 349 Ill App 393, 110 NE2d 758; Todd v. Borowski, 25 Ill App2d 367, 166 NE2d 296; Millsap v. Central Wisconsin Motor Transp. Co., 41 Ill App2d 1, 189 NE2d 793.
These cited cases also clearly demonstrate that the negligence of a defendant and contributory negligence of a plaintiff are material ultimate facts. The tendered interrogatory and accompanying instructions should have been given. For this reason the judgment is reversed and the cause remanded for a new trial.
It was held in Hulke v. International Mfg. Co., 14 Ill App2d 5, 51, 142 NE2d 717, 741 (1957) that:
A special interrogatory is not proper unless it relates to one of the ultimate facts upon which the rights of the parties directly depend and unless the answer responsive thereto would be inconsistent with some general verdict which might be returned upon the issues in the case. Interrogatories which ask for a special finding as to evidentiary facts are never proper, even though ultimate facts may be deduced therefrom by reason or argument.
See also, Brackett v. Osborne, 44 Ill App2d 441, 456, 195 NE2d 8 (1963).
And so the purpose of special interrogatories is to test the general verdict against the jury’s conclusions as to the ultimate controlling facts, and must necessarily be accompanied by a general verdict. Haywood v. Swift & Co., 53 Ill App2d 179, 181, 202 NE2d 880 (1964).
In North Shore Sanitary Dist. v. Schulik, 12 Ill2d 309, 312, 146 NE2d 25, 26 (1957), after finding that the special interrogatory relating to the ultimate fact (depreciation of the property by condemnation) upon which the rights of the parties depended, the court said:
Section 65 of the Civil Practice Act . . . reads in part as follows: “When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly”. We have held under an early similar statutory provision that the failure to enter a judgment on the special finding rather than the general verdict was reversible error. (Crosse v. Knights of Honor, 254 Ill 80.) Here, the existence of depreciation is a prerequisite to an award of substantial damages. The special finding of the jury (that there was not any depreciation) precludes such an award, and the judgment should have been entered on the special finding unless it was manifestly against the weight of the evidence.
In the instant case, where the special finding was founded in proof and was not against the manifest weight of the evidence and the interrogatory was proper, if the trial court had failed to enter judgment on the special finding as against the general verdict, it might be held to constitute reversible error. But when the trial court enters judgment according to the special finding, it is imperative to note for purposes of review that it is acting within the discretion given by the express language of section 65 which provides that “the court may render judgment accordingly.” Hence, on review, in absence of a showing of an abuse by the trial court of this discretion, the trial court’s judgment should not be overturned. There is no basis in the present case for finding that the trial court abused its discretion; therefore, I would affirm.