{ "id": 3158071, "name": "BLAIR PATUR, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY, Defendant-Appellee", "name_abbreviation": "Patur v. Aetna Life & Casualty", "decision_date": "1980-11-07", "docket_number": "No. 79-1190", "first_page": "464", "last_page": "471", "citations": [ { "type": "official", "cite": "90 Ill. App. 3d 464" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "305 N.E.2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "622" }, { "page": "622" } ], "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 89", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2521107 ], "weight": 3, "pin_cites": [ { "page": "94" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0089-01" ] }, { "cite": "132 N.E.2d 801", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "9 Ill. App. 2d 290", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5152165 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-2d/9/0290-01" ] }, { "cite": "406 N.E.2d 544", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 32", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5345490 ], "weight": 2, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0329-01" ] }, { "cite": "124 N.E.2d 55", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "4 Ill. App. 2d 177", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5130663 ], "year": 1971, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0177-01" ] }, { "cite": "278 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2747242 ], "weight": 2, "pin_cites": [ { "page": "1019" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/1018-01" ] }, { "cite": "380 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3337991 ], "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0483-01" ] }, { "cite": "315 N.E.2d 110", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 77", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5376530 ], "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0077-01" ] }, { "cite": "173 Ill. App. 100", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2764737 ], "pin_cites": [ { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app/173/0100-01" ] }, { "cite": "274 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911757 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0168-01" ] }, { "cite": "308 N.E.2d 244", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513208 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0464-01" ] } ], "analysis": { "cardinality": 816, "char_count": 16278, "ocr_confidence": 0.902, "pagerank": { "raw": 1.1468099426089099e-07, "percentile": 0.5804319093506995 }, "sha256": "ac34c51d18269901fd1a3459f31b3584092a5942629078968072ec56deff5ee6", "simhash": "1:4af4097f7b3cf577", "word_count": 2575 }, "last_updated": "2023-07-14T22:48:32.356040+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BLAIR PATUR, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE WILSON\ndelivered the opinion of the court:\nThis appeal arises out of plaintiff\u2019s action to recover compensation allegedly due him upon his termination from employment with defendant, Aetna Life & Casualty. After a trial on the merits, the jury returned a verdict in favor of defendant. Plaintiff requests this court to vacate the judgment and remand the cause for a new trial, contending that: (1) the trial court committed reversible error by submitting the wrong special interrogatory form to the jury, (2) the court further erred by not requiring the jury to answer the special interrogatory, and (3) defense counsel\u2019s closing argument was so prejudicial as to deprive plaintiff of a fair trial. We affirm the trial court\u2019s judgment.\nThe merits of plaintiff\u2019s action are not at issue. Rather, plaintiff objects to alleged procedural irregularities which purportedly deprived him of a fair trial. The underlying facts thus may be stated briefly.\nPatur, a certified life underwriter, began working for defendant on November 1, 1971. He was hired to supervise sales with the insurance brokers and agents to promote Aetna\u2019s products. Along with a salary and certain other benefits, he received incentive payments based on the commissions of the brokers he was servicing.\nIn January of 1972, a new compensation plan was initiated. Patur received a copy of the new plan and was present at the meeting in which the payment plan was discussed. The plan document contained the statement that \u201cincentive payments will not be vested, but in the event of termination, will be paid only for the period of time that the base salary and temporary support is paid.\u201d Testimony at the trial revealed that these incentive payments, amounting to 30% of the brokers\u2019 commissions, were not tantamount to commissions in themselves, but merely a device the company used to determine what a particular supervisor would be paid for future time periods.\nIn a letter dated March 17, 1975, plaintiff submitted his resignation, effective April 1, 1975. Plaintiff claimed a right to $14,300, based on the incentive payment percentage. He was informed that he was not entitled to this amount, and thereafter brought suit to recover it.\nAt the close of all the evidence, plaintiff submitted a special interrogatory to be given to the jury. The form provided:\n\u201cThe Jury will answer the following special interrogatory by writing in the blank space the word \u2018yes\u2019 of \u2018no\u2019 as the Jury may find from the evidence.\nWas the failure of the Defendant to make payment to plaintiff as charged in the Complaint a wilful and arbitrary refusal?\u201d\nThe parties agreed to substitute the words \u201cunreasonable and vexatious\u201d for \u201cwilful and arbitrary.\u201d The interrogatory as revised was then read to the jury. However, it was later discovered that the jury had been given the original version in written form.\nThe jury returned its verdict in favor of defendant but failed to answer the special interrogatory. Subsequently, the trial court denied plaintiff\u2019s post-trial motion for judgment notwithstanding the verdict, or for a new trial.\nOpinion\nPlaintiff first contends that the trial court committed reversible error by submitting the wrong version of the special interrogatory. We disagree. Initially, we note that plaintiff raises this issue for the first time on appeal. He did not include this objection in the post-trial motion as required by section 68.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(2)). That section provides, in relevant part, that \u201c[t]he post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof * * *.\" A reason behind this rule is to provide the trial judge the opportunity to appraise alleged errors in considering the need for a new trial. (Keene v. City of Chicago (1974), 17 Ill. App. 3d 464, 308 N.E.2d 244.) Accordingly, the appellate court will not generally review objections not properly preserved in the post-trial motion. Supreme Court Rule 366(b) (2) (iii) (Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(iii)); see Delany v. Badame (1971), 49 Ill. 2d 168, 274 N.E.2d 353.\nIn response to the waiver issue, however, plaintiff asserts that \u201cspecial circumstances\u201d exist. He claims that he did not discover the problem because it was\n\u201c * * * not until [he] had reviewed the entire record in the preparation of his appellate brief that a comparison could be made between the interrogatory tendered, modified and then accepted by the trial court and the one submitted to the jury in writing which was returned unanswered. During the charge to the jury, Plaintiff\u2019s counsel heard the trial judge read the correct (agreed upon) interrogatory to the jury. There is no way he could have presumed that the court would have erred ministerially by submitting the wrong form to the jury.\u201d\nWe are not persuaded by plaintiff\u2019s argument. He could have inspected the special interrogatory at the time the verdict was returned, or otherwise ascertained the result. Further, he had at least 30 days to discover the alleged error before filing the post-trial motion. (Ill. Rev. Stat. 1979, ch. 110, par. 68.1(3).) We therefore hold that plaintiff waived the right to challenge the discrepancy between the stipulated version of the interrogatory and the actual form submitted to the jury. Yet, even apart from the waiver issue, we believe that the substitution of \u201cwilful and arbitrary\u201d for \u201cunreasonable and vexatious\u201d at most would constitute harmless error because the two phrases carry the same general connotations.\nPlaintiff\u2019s second objection involving the special interrogatory raises the question of whether the trial court had a mandatory duty, on its own motion, to send the jury back to answer the interrogatory. Again, we note the possibility that this issue has been waived. Plaintiff should have made a timely request upon the trial court to require that the jurors answer the interrogatory. (E.g., Reagan v. Borgeson (1912), 173 Ill. App. 100, 103-04.) However, the parties had stipulated that the trial judge, in the absence of the attorneys, could receive the verdict, inform the attorneys of the result, and allow the jury to separate. Although defendant views the stipulation itself as a waiver, plaintiff contends that the ultimate responsibility for the jury\u2019s completion of an interrogatory rests with the trial judge; accordingly, the waiver concept is inapplicable.\nTo answer this question it is necessary to review the pertinent law. Section 65 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65) provides in pertinent part:\n\u201cThe jury * * * must be required on request of any party, to find specially upon any material question or questions of fact stated to them in writing. * * * When the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.\u201d\nA special interrogatory operates as a check on jury deliberations by requiring a jury to determine a particular issue of ultimate fact. (Beverly Bank v. Penn Central Co. (1974), 21 Ill. App. 3d 77, 82, 315 N.E.2d 110, 114.) Whether the interrogatory involves an ultimate fact depends upon its effect on the issue which the jury is required to resolve; the ultimate fact must be one that controls the general verdict. (Department of Transportation v. Bryant (1978), 63 Ill. App. 3d 483, 488, 380 N.E.2d 464, 469.) Consequently, if a special finding is absolutely irreconcilable with the general verdict, judgment is properly entered upon the special finding. (See Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 278 N.E.2d 453.) Courts are reluctant, however, to set aside a general verdict (Packard v. Kennedy (1955), 4 Ill. App. 2d 177, 186, 124 N.E.2d 55, 60), unless the special findings exclude every reasonable hypothesis consistent with the general verdict. See Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 1019. 278 N.E.2d 453, 455.\nUnder these principles, the jury\u2019s failure to answer plaintiff\u2019s special interrogatory becomes significant only if any response to the interrogatory would be irreconcilable with the general verdict. Plaintiff asserts that an affirmative answer to the question posed would have compelled the court to enter judgment against defendant, despite the general verdict.\nWe find plaintiff\u2019s argument to be erroneous. The ultimate issue at trial was whether defendant owed plaintiff certain payments; the jury\u2019s determination that plaintiff had no right to the money renders irrelevant the question of defendant\u2019s \u201cwilful and arbitrary\u201d refusal to pay. Plaintiff\u2019s reliance on Butler v. Castillo (1974), 20 Ill. App. 3d 329, 314 N.E.2d 328, to support his argument is misplaced. In Butler, a personal injury action, defendant submitted a special interrogatory concerning contributory negligence. The jury returned a verdict in favor of plaintiff without answering the special interrogatory. On appeal, defendant challenged the trial court\u2019s failure to obtain the jury\u2019s response to the interrogatory. Noting that defendant\u2019s post-trial motion to vacate the judgment had specifically raised this question, the court reversed, holding:\n\u201cThe question posed by defendant to the jury in the instant special interrogatory involved a matter material to the outcome of this case, the answer to which would clearly have controlled the jury\u2019s general verdict if contrary thereto. The correct practice in this instance was for the trial court to have required the jury to answer the special interrogatory. [Citations.]\u201d 20 Ill. App. 3d 329, 330, 314 N.E.2d 328, 329-30.\nIn sharp contrast to the Butler facts, the circumstances of the instant case indicate that neither an affirmative nor negative answer to the special interrogatory would have conflicted with the general verdict. In Butler, an affirmative answer to defendant\u2019s question regarding plaintiff\u2019s contributory negligence clearly would have contradicted a verdict in favor of plaintiff, because contributory negligence generally is a complete bar to recovery. (Verdonck v. Freeding (1977), 56 Ill. App. 3d 575, 579, 371 N.E.2d 1109, 1113.) In the instant case, however, defendant was found to have no duty to pay plaintiff and therefore defendant\u2019s alleged \u201cwilfulness\u201d or \u201carbitrariness\u201d has no legal significance.\nIn view of these considerations, we hold that plaintiff\u2019s special interrogatory did not involve an ultimate fact and therefore could not have controlled the general verdict. Consequently, we conclude that the interrogatory was improperly submitted to the jury. (See Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 38, 406 N.E.2d 544.) In effect, then, the interrogatory was a nullity; the jurors appropriately ignored it. We need not address the broader issue of whether, as a matter of law, a trial court commits reversible error by entering a general verdict without requiring a jury to answer a proper special interrogatory. We conclude only that, for the reasons set forth above, the trial court had no duty in this case to procure the jury\u2019s answer to plaintiff\u2019s interrogatory.\nPlaintiff\u2019s final basis for appeal involves the defendant\u2019s closing arguments. Plaintiff enumerated several instances of defendant\u2019s alleged inflammatory, prejudicial remarks. In essence, plaintiff charges that opposing counsel improperly (1) injected his personal opinions, (2) attributed unfounded motives to plaintiff, and (3) commented unfairly on plaintiff\u2019s failure to produce a certain witness to testify.\nAfter reviewing the challenged remarks, we find plaintiff\u2019s contention to be wholly without merit. Defense counsel\u2019s comments included the following:\n(1) \u201cI don\u2019t believe that the conduct of this company has been frivolous or harassing in nature in its refusal to pay * * * plaintiff. * * * I believe that Mr. Patur honestly believes that he is entitled to that money.\n* * *\n(2) [Plaintiff] needed the money to buy the executive position in the insurance agency. And you bet your life he was counting on that money to take that executive position in the insurance company.\n* * *\n(3) Mr. Propp could have called Mr. Kendrick [a witness]. * * * He had the first chance. * * * Why didn\u2019t he bring Mr. Kendrick in here? Why did I have to do it * * * [if] Mr. Kendrick was going to support Mr. Patur\u2019s position? It\u2019s a good common sense question which you should ask yourselves.\u201d\nFar from being \u201cgrossly improper and unfair\u201d argument, as plaintiff contends, we find these remarks to be within the realm of reasonable comment upon the evidence. Substantial latitude is given attorneys in their closing arguments to the jury. (See, e.g., Forslund v. Chicago Transit Authority (1956), 9 Ill. App. 2d 290, 132 N.E.2d 801; Goldstein v. Hertz Corp. (1973), 16 Ill. App. 3d 89, 305 N.E.2d 617.) Even if the remarks were not deemed entirely appropriate, they are not so prejudicial as to require reversal. (See Goldstein, 16 Ill. App. 3d 89, 94, 305 N.E.2d 617, 622.) Moreover, defendant cites instances from the transcript in which plaintiff\u2019s counsel made similar remarks. In Goldstein, 16 Ill. App. 3d 89, 94, 305 N.E.2d 617, 622, the court noted that \u201c[t]he latitude of permissible remarks may be wider when these remarks are made in response to direct remarks of opposing counsel [citation], and in urging conclusions counsel should be accorded broad latitude.\u201d\nTurning to the three challenged comments, we find that none constitutes reversible error. The first statement, defense counsel\u2019s \u201cbeliefs,\u201d was not unduly prejudicial because closing arguments are meant to explain to the jury what each side believes the evidence to prove. Moreover, plaintiff\u2019s counsel made similar remarks concerning his own opinion, and cannot logically impugn defense counsel\u2019s statement on that basis. The second comment, purportedly improper speculation as to plaintiff\u2019s motive, was objected to at trial and stricken from the record by the trial court. Hence, plaintiff suffered no prejudice from this remark either. The third comment, regarding plaintiff\u2019s failure to call a particular witness, was perhaps inappropriate in light of the fact that the witness did testify in court and\"the jury was free to draw its own inferences from the witness\u2019 testimony. Thus, it is not truly relevant which party called the witness to testify. Defendant\u2019s comment on this point, however, cannot be reasonably construed as inflammatory or grossly unfair. As a final consideration, our review of the transcript reveals that the trial judge in this case properly admonished the jury, before closing arguments began, that the attorneys\u2019 remarks were not to be considered evidential in nature. We find no merit to the contention that the challenged remarks, separately or cumulatively, prejudiced plaintiff\u2019s right to a fair trial.\nFor the foregoing reasons we affirm the lower court\u2019s judgment.\nAffirmed.\nSULLIVAN, P. J., and LORENZ, J., concur.\nThe substitution of plaintiff\u2019s preferred phrase, \u201cvexatious and unreasonable\u201d would not change the result. Once the jury determined that defendant had no legal obligation to pay the disputed sum, it simply does not matter how the refusal to pay is characterized.\nOne paragraph of the complaint alleges that \u201cthe failure of the Defendant to make such payment is a willful arbitrary refusal to make payments for which interest at the statutory rate should be assessed against Defendant.\u201d It appears that plaintiffs true purpose in submitting the interrogatory, thus, was to raise this collateral issue of statutory interest, which could have been considered only upon five preliminary finding of liability.\nThat the interrogatory should not have been given is not in itself reversible error, however, as long as plaintiffs rights were not prejudiced and the jury was not confused. (Gasbarra, 85 Ill. App. 3d 32, 39, 406 N.E.2d 544, 550.) Of course, since plaintiff is the party who submitted the interrogatory, he could not challenge it now as being prejudicial.", "type": "majority", "author": "Mr. JUSTICE WILSON" } ], "attorneys": [ "Eugene Propp and David V. Schultz, both of Chicago, for appellant.", "John H. Bickley, Jr., of Chicago, for appellee." ], "corrections": "", "head_matter": "BLAIR PATUR, Plaintiff-Appellant, v. AETNA LIFE & CASUALTY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 79-1190\nOpinion filed November 7, 1980.\nEugene Propp and David V. Schultz, both of Chicago, for appellant.\nJohn H. Bickley, Jr., of Chicago, for appellee." }, "file_name": "0464-01", "first_page_order": 486, "last_page_order": 493 }