{ "id": 2639304, "name": "ESTATE OF JAMES CONSTAS, Deceased, Petitioner-Appellee, v. WILLIAM CONSTAS, Respondent-Appellant", "name_abbreviation": "Estate of Constas v. Constas", "decision_date": "1976-09-10", "docket_number": "No. 62759", "first_page": "223", "last_page": "227", "citations": [ { "type": "official", "cite": "42 Ill. App. 3d 223" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 N.E.2d 730", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 2d 237", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2533586 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/102/0237-01" ] }, { "cite": "300 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 512", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5343580 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/0512-01" ] }, { "cite": "257 N.E.2d 155", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 2d 40", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582669 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0040-01" ] }, { "cite": "124 N.E.2d 55", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "4 Ill. App. 2d 177", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5130663 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0177-01" ] }, { "cite": "244 N.E.2d 362", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 2d 237", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601106 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0237-01" ] }, { "cite": "125 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "306" } ], "opinion_index": 0 }, { "cite": "5 Ill. App. 2d 175", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5135363 ], "weight": 2, "pin_cites": [ { "page": "177-78" }, { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/5/0175-01" ] }, { "cite": "276 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 203", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2754845 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0203-01" ] }, { "cite": "256 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "119 Ill. App. 2d 471", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1584501 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/119/0471-01" ] }, { "cite": "326 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 877", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783893 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0877-01" ] }, { "cite": "22 Ill. App. 2d 54", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5203017 ], "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/22/0054-01" ] }, { "cite": "222 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378169 ], "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0263-01" ] }, { "cite": "226 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "37 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865613 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0263-01" ] } ], "analysis": { "cardinality": 494, "char_count": 9830, "ocr_confidence": 0.87, "pagerank": { "raw": 1.0583015465980962e-07, "percentile": 0.5559121400514084 }, "sha256": "2c90f9fba3603b1bb23078c786b03bd685a777a6708e375c4e9cf730b1f10c42", "simhash": "1:a39d32c77e842586", "word_count": 1650 }, "last_updated": "2023-07-14T15:00:19.600233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ESTATE OF JAMES CONSTAS, Deceased, Petitioner-Appellee, v. WILLIAM CONSTAS, Respondent-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DRUCKER\ndelivered the opinion of the court:\nRespondent appeals from a verdict and judgment awarding one-half of the funds contained in a safe-deposit box to the estate of his deceased brother.\nRespondent and his brother were co-owners of a restaurant and were also joint lessees of three safe-deposit boxes located at various financial institutions in Chicago. The funds now in issue were in a box located at North Federal Savings and Loan Association. After the brother\u2019s death, the contents of the box were examined by an official of the Illinois Treasurer\u2019s office, and *22,986 was found. Shortly thereafter respondent removed these funds. Only *60 was found in the other two boxes.\nPetitioner filed suit to recover one-half of the funds which were found at North Federal and also for portions of funds which were alleged to have been in the other boxes and which were claimed to be the decedent\u2019s property at the time of his death. After a jury trial, a verdict for petitioner was returned in the amount of *11,493 which represented one-half of the funds found at North Federal Savings.\nSeven special interrogatories were submitted to the jury at respondent\u2019s request. The interrogatories asked:\n\u201cDoes the Jury find from the evidence that at the time of the death of James Constas the said James Constas was the owner of the sum of *11,439.00 in a safe deposit box at North Federal Savings and Loan Association of Chicago to which both Bill Constas and James Constas had access?\nDoes the Jury find from the evidence that at the time of the death of James Constas there was the sum of *27,300.00 in a safe deposit box at National Security Bank of Chicago to which both Bill Constas and James Constas had access?\nDoes the Jury find from the evidence that at the time of the death of James Constas there was the sum of *13,650.00 which was the property of James Constas in the National Security Bank safe deposit box?\nDoes the Jury find from the evidence that after the death of James Constas the respondent, Bill Constas, removed the sum of *27,240.00 from the safe deposit box?\nDoes the Jury find from the evidence that at the time of the death of James Constas there was the sum of *25,000.00 in a safe deposit box at First Federal Savings and Loan Association of Chicago to which both Bill Constas and James Constas had access?\nDoes the Jury find from the evidence that at the time of the death of James Constas there was the sum of *12,500.00 which was the property of James Constas in the First Federal Savings and Loan Association of Chicago safe deposit box?\nDoes the Jury find from the evidence that after the death of James Constas the respondent, Bill Constas, removed the sum of *25,000.00 from the safe deposit box?\u201d\nThe jury answered \u201cyes\u201d in response to the first question and \u201cno\u201d to the last six, thus finding that decedent did own one-half of the funds at North Federal but did not have any funds in the other boxes at the time of his death. The answers to the seven interrogatories were therefore consistent with the general verdict.\nSince a cross-appeal has not been filed, we direct our attention solely to the propriety of the verdict awarding one-half of the contents of the box at North Federal Savings to petitioner. Although respondent has raised several contentions on appeal, consideration of only one issue will be dispositive of this case.\nDuring its charge to the jury the trial court instructed them concerning the manner in which they should answer the special interrogatories pertaining to the three safe-deposit boxes. After giving these instructions, the court stated:\n\u201cNow, in consistence with your answers to these instructions, if you find for the petitioner or the estate, you will then sign the verdict which states, we the jury find the issues for the petitioner and we assess the petitioner\u2019s damage in the sum of blank dollars, and you shall insert the amount and again bear the signature of each one of you.\nIf from the evidence that you have found that the petitioner or the estate has not sustained their position, then you will sign the other verdict which will be consistent with the interrogatories and it states, we the jury find the respondent not guilty, and you will also sign this.\u201d (Emphasis supplied.)\nRespondent urges that these comments indicated to the jury that the general verdict and special interrogatories were to be consistent with each other, and that it was error to instruct them in such a manner. We agree.\nA special interrogatory controls over a general verdict. (Ill. Rev. Stat. 1973, ch. 110, par. 65; Borries v. Z. Frank, Inc. (1967), 37 Ill. 2d 263, 226 N.E.2d 16.) The purpose of a special interrogatory was stated in Sommese v. Moling Brothers, Inc. (1966), 36 Ill. 2d 263, 267, 222 N.E.2d 468, 470:\n\u201cIt is generally recognized that the function of a special interrogatory is to require the jury\u2019s determination as to one or more specific issues of ultimate fact and is a check upon the deliberations of the jury. \u2018Special interrogatories are used for the purpose of testing the general verdict against the jury\u2019s conclusions as to the ultimate controlling facts.\u2019 Wise v. Wise, 22 Ill. App. 2d 54, 58.\u201d\nAdvising the jury that the special interrogatory and general verdict should conform constitutes reversible error requiring a new trial. Thomas v. Dalpos (1975), 26 Ill. App. 3d 877, 326 N.E.2d 42; Sutton v. Peoples Gas Light & Coke Co. (1970), 119 Ill. App. 2d 471, 256 N.E.2d 19; Chase v. Morgan Cab Co. (1971), 2 Ill. App. 3d 203, 276 N.E.2d 393.\nIn Swanson v. Chester Johnson Electric Co. (1955), 5 Ill. App. 2d 175, 177-78, 125 N.E.2d 304, 306, the trial judge instructed the jury that, \u201cThe verdict you reach should be compatible with the interrogatories.\u201d The appellate court reversed, finding that this instruction was erroneous:\n\u201cThe jury is free in its deliberations subject to the instructions which must correctly state the law. The trial court was in error in seeking to impose a restraint which is unwarranted. The legislature presupposed that a jury in the free exercise of its functions might return interrogatories inconsistent with the general verdict. It provided in that event that the interrogatory controls.\u201d\nSee also Mathes v. Basso (1968), 104 Ill. App. 2d 237, 244 N.E.2d 362.\nAs in Swanson, the trial court in the instant case erroneously instructed the jury. After advising them concerning the interrogatory concerning each safe-deposit box, the court stated that the general verdict should be \u201cin consistence with your answers to these instructions\u201d and \u201cwill be consistent with the interrogatories.\u201d We cannot accept petitioner\u2019s contention that this was merely a statement made in passing which was not so explicit as to be considered an instruction to the jury. The context in which the trial court made the statements could leave no doubt in the jury\u2019s mind that the verdict had to conform with the interrogatories.\nPetitioner argues further that the jury could not have been influenced by the trial court\u2019s instruction since the case involved a simple issue. In Swanson the court answered this contention by stating:\n\u201cIt is true that the interrogatories in the instant case were not on complicated questions \u201d # \u201d and plaintiff argues that there was no showing of prejudice. * * * We cannot with confidence speculate what effect the trial judge\u2019s statement, in the instant case, had on the jury. It may have answered the interrogatories as it did to protect its decision to assess damages. It may have decided it had to assess damages because it answered the interrogatories as it did. We think the statement was prejudicial to a fair trial.\u201d (5 Ill. App. 2d 175, 179.)\nSimilarly, we will not speculate as to the effect that the trial court\u2019s statement had upon the jury.\nLastly, petitioner urges that reversal is not required since the interrogatories were erroneously submitted to the jury over his objection and therefore should be entirely disregarded. Section 65 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 65) requires a jury, upon the request of a party, to find specially upon any material question of fact stated to them in writing. The phrase \u201cmaterial question\u201d has been held to mean \u201cultimate facts\u201d upon which the rights of the parties depend. (Packard v. Kennedy (1955), 4 Ill. App. 2d 177, 124 N.E.2d 55; Snow v. Farwick (1970), 121 Ill. App. 2d 40, 257 N.E.2d 155.) A special interrogatory must be given if it is upon an ultimate question of fact and is in proper form. (Phillips v. Shell Oil Co. (1973), 13 Ill. App. 3d 512, 300 N.E.2d 771; Golden v. Big Bear Foods, Inc. (1968), 102 Ill. App. 2d 237, 243 N.E.2d 730.) Here the interrogatories concerned the question of ownership of funds in the safe-deposit boxes. Petitioner has not indicated why the interrogatories were improper, and we cannot conceive of a more material question in a case such as this. Therefore, the trial court was correct in submitting the interrogatories to the jury.\nThe judgment is reversed and the cause is remanded for a new trial to determine the ownership of the contents of the safety-deposit box at North Federal Savings and Loan Association.\nReversed and remanded.\nBARRETT and SULLIVAN, JJ., concur.\nDuring the conference on instructions and special interrogatories, respondent\u2019s attorney twice alluded to \u201cinstructions\u201d when it is obvious he meant \u201cinterrogatories.\u201d This adds to our belief that the trial court was referring to the interrogatories.", "type": "majority", "author": "Mr. JUSTICE DRUCKER" } ], "attorneys": [ "Gaines, Boyer & Shepp, of Chicago (Eugene L. Shepp, of counsel), for appellant.", "Conforti & Demos, of Chicago (James Demos, of counsel), for appellee." ], "corrections": "", "head_matter": "ESTATE OF JAMES CONSTAS, Deceased, Petitioner-Appellee, v. WILLIAM CONSTAS, Respondent-Appellant.\nFirst District (5th Division)\nNo. 62759\nOpinion filed September 10, 1976.\nGaines, Boyer & Shepp, of Chicago (Eugene L. Shepp, of counsel), for appellant.\nConforti & Demos, of Chicago (James Demos, of counsel), for appellee." }, "file_name": "0223-01", "first_page_order": 253, "last_page_order": 257 }