Supplemental Opinion on Motions to Dismiss and on Rehearing
MR. JUSTICE BURKEdelivered the supplemental opinion of the court.
The opinion in this cause was filed on October 5, 1965, reversing a judgment notwithstanding the verdict and an order for a new trial on damages entered against appellants Ned Thomas Barra and Mount Vernon Tire Service Corporation, and remanding the cause with directions to enter judgment on the verdict for said appellants and against appellees, Marlene H. Martino, administratrix, Iola Saunders, administratrix, Anton Halmel, and Cities Service Oil Company.
Appellees thereafter filed “motions to expunge the orders entered” by this court. Although designated as “motions to expunge,” these motions are in reality motions to dismiss the appeal, which are normally filed immediately after the notice of appeal is filed, and before an appellant incurs costs in connection with the filing of his brief and abstract. Appellees also filed petitions for a rehearing.
The basis of the “motions to expunge” is that this court cannot entertain the appeal because appellants took a direct appeal from the trial court’s order, which was not final and appealable, rather than proceeding by way of a petition for leave to appeal as required in cases involving the granting of new trials, as set out in Supreme Court Rule 30. The original briefs of the appellees did not call our attention to this procedural question.
Section 68.1(2) of the Civil Practice Act requires that a post-trial motion must “state the relief desired.” Ill Rev Stats 1965, chap 110, par 68.1(2). Section 68.2 recites that the court shall impanel a jury, where not waived, for the purpose of assessing damages if the ruling on the post-trial motion is in favor of the party entitled to recover damages and if there is no verdict assessing damages. Appellees’ post-trial motions requested, and the trial court granted, “judgment notwithstanding the verdict” against the appellants and a new trial as to damáges. This, however, is a misnomer with regard to that part of the order concerning appellees Martino, Saunders, and Halmel. The trial court, as to said appellees, rendered a finding on liability notwithstanding the verdict and granted a trial as to damages. A “judgment” could not have been granted because damages had not been assessed. A “new trial” on damages could not have been ordered because the jury, by finding no liability in the first instance, did not consider the question of damages. The relief requested and the relief granted did substantially conform to sections 68.1 (2) and 68.2 of the Civil Practice Act. Appellees Martino, Saunders and Halmel’s motions for a new trial on the issue of damages only were not in fact motions for a new trial because there had been no trial on the issue of damages. These motions were incidental to the motions for a finding notwithstanding the verdict in favor of these appellees as contemplated by sections 68.1(2) and 68.2 of the Civil Practice Act.
The trial court’s order incorporated a recital under section 50(2) of the Civil Practice Act that there was no just reason to delay enforcement or appeal of the order. Ill Rev Stats 1965, chap 110, par 50(2). This recital, however, did not render the order final and appealable as to appellees Martino, Saunders and Halmel, against whom the order was not in fact final and appeal-able since a trial was ordered on the question of damages. Under section 50(2) there is no right of appeal in favor of any party against whom no final judgment, order or decree has been entered. See Davis v. Childers, 33 Ill 2d 297, 211 NE2d 364; Central Wisconsin Motor Transp. Co. v. Levin, 66 Ill App2d 383, 214 NE2d 776; Griffin v. Board of Education of Chicago, 38 Ill App2d 79, 186 NE2d 367. Since there was no final judgment as to appellees Martino, Saunders and Halmel, there was no appealable order entered by the trial court to give this court the authority to entertain a direct appeal as to these appellees. The appeal against Martino, Saunders and Halmel must therefore be dismissed.
As to the appellee Cities. Service Oil Company the order of the trial court is final and appealable, for the reason that damages were stipulated in the amount of $3,000 and a judgment entered thereon. Appellants Barra and Mount Vernon could have taken, and did in fact take, a direct appeal from this part of the order. The order further contained a recital that there was no just reason to delay enforcement or appeal, required under section 50(2) of the Civil Practice Act in cases involving multiple parties or multiple claims where a final order, judgment or decree is entered as to one or more but fewer than all of the parties or claims in order to appeal therefrom. Ill Rev Stats 1965, chap 110, par 50(2). The Cities Service Oil Company is therefore not entitled to a dismissal of the appeal against it.
The Cities Service Oil Company, in its petition for rehearing, has adopted the arguments contained in the alternative petition for rehearing of appellees Martino and Saunders. The matter relating to the right of this court to entertain the appeal has been dealt with above.
The contention is made that the decision of this court violates the general principles of the doctrine of respondeat superior, in that a corporation can act only through its employees or agents and that a corporation may be held liable for the acts of its employees or agents even if such acts are unknown to the corporate officers. The argument is made that the Nelson Concrete Company could act only through its employee, Barra, and for this reason Barra must be held liable. It is further argued that “the concept that there could have been another employee negligent in no wise exculpates [Barra].” It is difficult to follow this reasoning in view of the fact that evidence was offered that Barra, as a Nelson Concrete truck driver, was not responsible for the maintenance and inspection of the mechanical parts of his truck. If an employer places a certain duty upon one employee and not upon another, the latter employee clearly cannot be charged with the breach of that duty by the former employee, even though the employer may be charged with liability for the breach. There was no showing Nelson Concrete placed any duty with regard to maintenance and inspection of the mechanical parts of the truck upon Barra, nor that Barra voluntarily assumed such burden, and the jury so found; rather, the evidence shows that Nelson Concrete itself assumed that burden. The argument advanced with regard to the doctrine of respondeat superior revolves around the basic concept of responsibility of an employer for the acts of his employee. Whether the doctrine could have been invoked against Nelson Concrete, had it been made a party to this action, need not be considered for the reason that appellant Barra was not shown to be the employee responsible for the inspection and maintenance of the mechanical parts of the truck. Consequently, merely because the jury could have found Nelson Concrete liable under the doctrine of respondeat superior does not necessarily mean that the appellant Barra is the employee from whom this liability would stem.
The argument is raised that, under the doctrine of res ipsa loquitur, the evidence shows there is liability on someone and consequently someone should be held liable. As stated in our original opinion, neither Barra nor Mount Vernon was shown to have violated the specific duty with which they were charged so as to be held liable. Rather, the evidence showed that Nelson Concrete assumed the duty to inspect and maintain the mechanical parts of the truck, which might have given rise to the application of the doctrine of res ipsa loquitur, but Nelson Concrete was not made a party to the action. Furthermore, while it is true, as contended, that the inclusion of a specific charge of negligence does not preclude a finding of liability under a general charge of negligence (Goertz v. Chicago & N. W. Ry. Co., 19 Ill App2d 261, 153 NE2d 486), the complaint and cross-complaint contained no general charge of negligence upon which a finding of liability under the doctrine of res ipsa loquitur could be predicated, nor were any instructions submitted to the jury with regard to a general charge of negligence. The law as cited is correct, but the circumstances of this case do not permit its application. It should also be pointed out that this matter was not raised in the pleadings or in the trial court, and consequently cannot be raised for the first time on appeal. Benson v. Isaacs, 22 Ill2d 606, 609, 610, 177 NE 2d 209.
We adhere to our original opinion as to the appellee Cities Service Oil Company.
The appeal is dismissed as to appellees Martino, Saunders and Halmel, and the judgment for Cities Service Oil Company is reversed and the cause remanded with directions to enter judgment in favor of appellants Barra and Mount Vernon and against appellee Cities Service Oil Company.
Appeal dismissed as to appellees Martino, Saunders and Halmel and judgment for Cities Service Oil Company reversed and cause remanded with directions.
BRYANT, P. J. and LYONS, J., concur.