specially concurring:
On procedural grounds, this case should be affirmed.
To my view, plaintiff has not properly preserved his issues for review in this court. And he must first gain admittance before he can be heard. This he failed to do.
In citing alleged errors below, the post-trial motion merely said:
“(5) The Court refused to give Plaintiffs tendered instructions 9,11 and 16.
(6) The Court gave, over objection of the Plaintiff, Defendant’s tendered instructions 2, 3 and 4.”
Section 68.1(2) of the Civil Practice Act not only dictates that a post-trial motion “must contain the points relied upon,” but further prescribes and mandates more: “* ” * particularly specifying the grounds in support thereof, 6 * Defendant argues that such requirement has not been met here and I am persuaded that this is so.
In 1958, this question was ruled upon directly in Tabor v. Tazewell Service Co. (1958), 18 Ill. App. 2d 593, 600-01, 153 N.E.2d 98, 102, where the post-trial motion cited as error that the court gave or refused certain instructions, designated as plaintiffs or defendants’ and identified by number. The appellate court (for the then third district) ruled,
“We think the above recitals were sufficient to preserve the alleged error in instructing the jury. The attention of the trial court was thereby directed to certain particular instructions which are referred to by their respective numbers. The obvious purpose behind the enactment of Sec. 68.1 is to require the party seeking a new trial to indicate with sufficient particularity in his motion the grounds relied upon thus affording the trial court an opportunity to correct its error. While a post trial motion must specify the errors relied upon, it need not be a brief or argument. [Citations.]” 18 Ill. App. 2d 593, 600-01.
More recently, in Crothers v. La Salle Institute (1976), 40 Ill. App. 3d 984, 992, 353 N.E.2d 114, 121, this question was again raised. The post-trial motion there stated that the court erred in refusing to give plaintiffs instruction No. 5 and set forth verbatim the instruction complained of. Citing Tabor, the appellate court for the first district ruled that to be sufficient to preserve the error for appeal.
But dictum to the contrary is found in Huff v. Illinois Central R.R. Co. (1972), 4 Ill. App. 3d 113, 280 N.E.2d 256, where the appellate court for the fifth district found the entire post-trial motion to be insufficient to preserve errors for appeal. Citing Sny Island Levee Drainage District v. Meyer (1963), 27 Ill. 2d 530, 190 N.E.2d 356, among others, the court found the following objections in plaintiff’s post-trial motion to be too general to preserve any error:
“ 7. The court erred in refusing instructions numbered 3 and 5 tendered by plaintiff.
8. The court erred in giving each and every instruction tendered by defendant, objected to by the plaintiff, and given by the court.’ ” 4 Ill. App. 3d 113, 115, 117, 280 N.E.2d 256, 258, 260.
In Sny Island, defendants made a general objection in their post-trial motion to “ ‘every instruction that was tendered by the objectors and refused by the court.’ ” The court ruled that to be insufficient, stating, “The motion should specify the grounds why the refusal (or giving) of the instruction was error, and if the party fails to do so he waives the right of review.” (Emphasis added.) 27 Ill. 2d 530, 537-38, 190 N.E.2d 356, 361.
Although the citation of error in the post-trial motion in Sny Island was more general than that here, the Illinois Supreme Court did state a broad rule, and I consider that rule to be controlling. Consistent with the ruling in Sny Island is the Supplement to Historical and Practice Notes to section 68.1 of the Civil Practice Act (Ill. Ann. Stat., ch. 110, par. 68.1, at .14 (Smith-Hurd 1978 Supp.)), which states,
“The neglect of this subsection’s requirement that the ‘post-trial motion must contain the points relied upon [for post-trial relief], particularly specifying the grounds in support thereof’ occasions a great many futile appeals, and a great deal of useless labor by counsel and the appellate courts. Strict adherence to the requirement allows the officer most likely in the usual case to be able accurately to assess the claimed error — the trial judge — the maximum opportunity to correct any errors that may have occurred. Nor is the requirement that the post-trial motion be specific in pointing out claimed defects one which is unduly burdensome to the litigants. It does not require them to do any work they would not in any event have to do eventually, and in fact it encourages the litigants and their counsel to evaluate their case and the course of the trial at precisely the time their recollection of it is freshest.”
Finally, I note that there is a recent decision of the appellate court for the third district, Biehler v. White Metal Rolling & Stamping Corp. (1978), 65 Ill. App. 3d 1001, 382 N.E.2d 1389, in which plaintiff’s post-trial motion was found to be sufficient. The Biehler opinion does not quote the language used in the post-trial motion and does not indicate any particular method by which error in instructing the jury must be cited in such a motion. If the post-trial motion there cited errors in the giving or refusal of instructions — by merely identifying the instructions by number — I would deem that decision to be contrary to the ruling in Sny Island.
In sum, I believe plaintiff’s post-trial motion to have been insufficient to preserve for appeal the alleged errors in instructing the jury. And as those were the only errors urged on appeal, the lower court should be affirmed.