dissenting:
The unusual and unauthorized use of a pretrial summary judgment as to one of the principal issues of the case has resulted in a procedural dilemma that seemingly precludes review of the case on appeal.
In view of the direction taken by the case in the trial court, the result reached by the majority is understandable. Nevertheless, I am persuaded that the improper use of summary judgment in the case has produced the unusual posture in which it comes to us and that the only way to rectify the error is to order a new trial upon all issues. Such a directive by this court is authorized by the applicable rules, and fundamental fairness and justice require it. Accordingly, I respectfully dissent.
Section 57(1) of the Civil Practice Act provides that a plaintiff may move for summary judgment in his favor for all or any part of the relief sought. Use of the word “relief” in that section of the statute was a matter of specific choice, not of random selection.
The summary judgment granted by the trial court did not grant any of the relief sought by the plaintiff. The only relief sought by the plaintiff in his one-count complaint was a judgment for damages. Rather, the summary judgment was granted as to but one element or issue comprised in the single cause of action asserted by the plaintiff. By no manner of interpretation could the summary judgment rendered be considered a judgment in the traditional sense, and citation of authority for that proposition should be unnecessary. No relief was granted by the judgment. There was nothing to enforce, and, even if the findings required for appeal by Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) had been made, the summary judgment would not be appealable because it did not dispose of one of several claims or of one of several parties.
The summary judgment was granted prior to commencement of the trial upon a consideration of pleadings, depositions, exhibits and affidavits. When the proceeding leading to the summary judgment is fairly considered, it is readily apparent that it was improperly granted since there was- a serious dispute as to the facts which should have been resolved by the jury. That, however, is not the focus of my disagreement and will be discussed no further.
Had the trial court followed the applicable Illinois practice, the motion for a pretrial summary judgment upon a constituent issue of the single claim asserted would not have been entertained. Rather, the court would have directed that the case proceed to trial. Either at the close of plaintiff’s evidence, or at the close of all the evidence, the court could have entertained plaintiff’s motion for a directed verdict or finding that the defendant was a common carrier by rail engaged in interstate commerce. His ruling would be governed by his determination of the quantum of certainty or doubt established by the evidence that had been presented. If warranted by the evidence, the trial court could remove the issue from consideration by the jury by a directed verdict or finding as to that issue and leave the balance of the issues for resolution by the jury. That the trial court may direct a verdict of finding in a proper case upon a certain issue or issues is not questioned in Illinois. See Smith v. Bishop (1965), 32 Ill. 2d 380, 205 N.E.2d 461; Bartolomucci v. Clarke (1965), 60 Ill. App. 2d 229, 208 N.E.2d 616; Betzold v. Erickson (1962), 35 Ill. App. 2d 203, 182 N.E.2d 342.
The procedure followed by the trial court and the plaintiff apparently was that used in the Federal practice. The practice of rendering summary judgment upon an issue involved in a claim was expressly rejected in Illinois. Thus, our summary judgment statute provides that such judgment may be granted for all or part of the relief sought, not as to all or some of the issues involved. This appears from the Historical and Practice Notes in the Smith-Hurd Statutes (Ill. Ann. Stat., ch. 110, par. 57, Historical and Practice Notes, at 61-62 (Smith-Hurd 1968)), which state in pertinent part:
“Revised section 57 does not include the provision of Federal Rule 56(d) that even if judgment is not rendered on the whole case the court may determine what facts appear without substantial controversy and enter an order specifying them, which order obviates the necessity of proof on those facts at the trial. A provision to that effect, included in the early drafts of revised section 57, was eliminated in the final draft because a majority of the Joint Committee felt that it tended to invite encroachment upon the right to trial by jury or court on evidence adduced in open court.”
Fundamental fairness and justice dictate that both the interlocutory summary judgment and the final judgment be set aside and the case remanded for a new trial. Supreme Court Rule 366(a)(5) authorizes this court to “grant any relief * * * that the case may require,” and that constitutes sufficient authority for such an order by this court. Cf. Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.