concurring in part and dissenting in part:
I dissent only from that portion of the majority’s opinion which reverses Gold Seal’s verdict against Mansfield. I believe that a reasonable hypothesis that would reconcile the answer to the special interrogatory with the general verdict exists, and that the general verdict should be allowed to stand.
As noted by the majority, the fault of a party seeking indemnity is measured in comparison to the fault of other parties. The special interrogatory finding Gold Seal guilty of major fault does not specifically state with which party Gold Seal’s fault was being compared. The jury might have been comparing Gold Seal’s fault with that of Mansfield. It is also quite possible that the jury was measuring Gold Seal’s fault in comparison with Dressier’s fault. A number of factors convince me that it is a reasonable hypothesis that the jury was comparing the relative fault of Gold Seal and Dressier when they answered the special interrogatory finding Gold Seal guilty of major fault. The jury was specifically instructed that in order to return a general verdict for Gold Seal against Mansfield, they had to find that Gold Seal was free from major fault when compared with the fault of Mansfield. Additionally, the jury had found in favor of Dressier and against Gold Seal in the cross-complaint action. This finding is totally consistent with a finding that Gold Seal was guilty of major fault only in relation to Dressier.
In this case, the jury was faced with a trial involving four distinct causes of action, three of which required the jury to compare the fault of various parties. The jury was instructed to compare the fault of Gold Seal with the fault of both Dressier and Mansfield. The majority’s holding rests on the assumption that the jury understood the special interrogatory to refer to the third-party action between Gold Seal and Mansfield only, rather than to any other facet of the case. The fact that the special interrogatory refers to Gold Seal as “third-party plaintiff” supports the view that the interrogatory refers to Gold Seal’s third-party action by its very terms. However, I think that it is plausible to assume that the jury paid little attention to the technical term “third-party plaintiff” in the interrogatory. The technical designations of the parties were used sparingly in the presence of the jurors. The jury was instructed extensively on the posture of the parties in the litigation without the use of the terms “third-party plaintiff,” “third-party defendant,” “cross-plaintiff,” or “cross-defendant.” It is also significant that the jury was presented with an identically worded interrogatory requesting a finding of whether Dressier was guilty of major fault. It is reasonable to think that the jury, because of the symmetry of the interrogatories, assumed that it was being asked to compare the fault of Dressier and Gold Seal relative to the claim between those parties despite the use of the term “third-party plaintiff” in both interrogatories. In its general verdict, the jury absolved Dressier of all fault, found that Gold Seal was liable to the plaintiff, but found that Gold Seal was entitled to indemnity from Mansfield. The verdict and the answers to the special interrogatories are consistent with the view that the jury constructed a hierarchy of fault, with Gold Seal being more at fault than Dressier but qualitatively less at fault than Mansfield. Therefore, the jury could well have found that Gold Seal was guilty of major fault as compared with the innocent Dressier, but was still entitled to reimbursement from Mansfield. In view of the rule that “[a]ll reasonable presumptions will be entertained in favor of the general verdict, while nothing will be presumed in aid of special findings of fact” (Wicks v. Cuneo-Henneberry Co. (1925), 319 Ill. 344, 350, 150 N.E. 276), I find that the use of the technical term “third-party plaintiff” in the special interrogatory does not make it unreasonable to think that the jury was comparing the fault of Gold Seal with that of Dressier, and that therefore the affirmative answer to the special interrogatory can be reconciled with the general verdict.
The majority cites Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664, in support of its view that Gold Seal cannot rely on any ambiguity in the special interrogatory on appeal because it did not object to or attempt to clarify the special interrogatory at trial. In Saldana, the trial court presented the jury with a special interrogatory on its own motion. Our supreme court held that the question of the sufficiency of the interrogatory was not preserved for review because the party raising the issue on appeal had neither made a specific objection to the content of the interrogatory nor tendered an alternative interrogatory. (74 Ill. 2d 379, 387.) In the instant case, the proponent of the interrogatory contends that the trial court erred in finding that the interrogatory was too ambiguous to be allowed to control the general verdict. Although Gold Seal is, perhaps, the beneficiary of that ambiguity, I would hold that it is incumbent upon the party who wishes to have the answer to a special interrogatory control the general verdict to draft the interrogatory with enough specificity to achieve the desired result. Therefore, I believe that Gold Seal’s failure to clarify the interrogatory that was offered by its adversary does not preclude Gold Seal from arguing on appeal that the trial court’s finding that the interrogatory was ambiguous was correct.
For the reasons stated above, I do not believe that the special interrogatory finding Gold Seal guilty of major fault is clearly and absolutely irreconcilable with the general verdict requiring Mansfield to indemnify Gold Seal. Therefore, I would affirm.