dissenting:
I respectfully dissent and would affirm.
In this case the jury found for plaintiff on liability, but awarded no damages. The majority assumes the jury meant what it said on liability, and therefore its decision on damages was inadequate and must be reversed and remanded (along with the issue of liability). A more reasonable view of the jury’s action is that the jury in fact ruled in favor of defendant on liability and simply used the wrong verdict form. (See F. James & G. Hazard, Civil Procedure § 7.21, at 393 n.31 (3d ed. 1985) ("a perversely expressed finding for the defendant”).) The instructions and verdict forms in this case involved a third-party defendant and are not easy to follow, but everybody understands the words "damages in the total sum of $0.” Why would 12 jurors, after intentionally deciding that defendant was liable, award no damages, where damages clearly existed?
Illinois follows the rule that courts should ignore legalistic reasoning in interpreting the effects of a jury’s finding and should instead use practical common sense. (Kimmel v. Hefner (1962), 36 Ill. App. 2d 137, 141, 183 N.E.2d 13, 14-15, citing Royal Indemnity Co. v. Township of Island Lake (1929), 177 Minn. 408, 409-10, 225 N.W. 291, 292 (verdict for plaintiff awarding no damages "had the same effect as, and was in fact though not in form, a verdict for defendant”).) The view that a verdict like this conclusively establishes the liability of the defendant is described as "technical and unrealistic.” D. Wilson, The Motion for New Trial Based on Inadequacy of Damages Awarded, 39 Neb. L. Rev. 694, 703 (1960).
The majority suggests that in order to interpret the verdict as one for defendant on the issue of liability we would have to assume the jury ignored the instructions: (1) which verdict form to use, and (2) that there would be no occasion to consider damages if the jury decided for defendant on liability. We need not attribute to malice that which may be explained by confusion. The two instructions mentioned were not given together, but were separated by a number of instructions.
The question whom to believe and what weight is to be given all of the evidence is a decision for the trier of fact, whose determinations should not be upset on review unless manifestly erroneous. A trial court’s refusal to grant a new trial will be reversed only in those instances where it is affirmatively shown that it clearly abused its discretion. (Maple v. Gustafson (1992), 151 Ill. 2d 445, 455, 603 N.E.2d 508, 513.) In this case it was within the jury’s prerogative to find for defendant, and the trial court did not abuse its discretion in denying the motion for a new trial. We should affirm.
I agree with the majority that this appeal could have been avoided if the trial court had made further inquiry after the verdict was returned and before the jury was discharged.