Allen v. Norman Brothers, Inc.
State: Illinois
Court: 5th District Appellate
Docket No: 5-96-0077
Case Date: 03/14/1997
NO. 5-96-0077
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
DAVID L. ALLEN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Madison County.
)
v. ) No. 93-L-1005
)
NORMAN BROTHERS, INC., ) Honorable
) Phillip J. Kardis,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE WELCH delivered the opinion of the court:
Plaintiff, David L. Allen, appeals from a judgment entered
upon a jury verdict by the circuit court of Madison County in favor
of defendant, Norman Brothers, Inc. Plaintiff had filed suit
against defendant, seeking recompense and damages for injuries he
suffered while employed by defendant as a second mate on a towboat
owned, operated and controlled by defendant.
Plaintiff's complaint was addressed to two separate incidents,
with three counts relating to each incident. Counts I and IV were
brought under a federal statute known as the Jones Act (46 U.S.C.
688 (1982)) and alleged that plaintiff was injured while
performing his duties of employment as a result of defendant's
negligence in: failing to provide plaintiff a reasonably safe
place in which to work; failing to provide plaintiff with adequate
assistance; failing to warn plaintiff of the dangers in plaintiff's
assigned work area; failing to supervise plaintiff; failing to
inspect the vessel to see that it was not defective or unsafe; and
failing to provide plaintiff with adequate equipment to safely
perform his work. Counts II and V were brought under the general
maritime law of the United States and alleged that defendant's
vessel was unseaworthy for the same specific reasons enumerated in
counts I and IV. Counts III and VI were also brought under the
general maritime law of the United States and sought maintenance
and cure for plaintiff's injuries.
Plaintiff did not demand a jury trial. In its answer to the
complaint, defendant demanded a jury trial on all counts. Just
before trial, plaintiff moved to strike defendant's jury demand for
the reason that defendant has no legal right to a jury trial in a
Jones Act or maritime case. The motion to strike was denied, and
the cause proceeded to trial before a jury.
At the conclusion of the plaintiff's opening statement, a
directed verdict was entered in favor of defendant on counts IV and
V of the complaint, relating to the second incident and alleging
claims under the Jones Act and for unseaworthiness. At the
conclusion of the trial, the jury returned a verdict in favor of
defendant on counts I and II but awarded plaintiff cure on count
III in the amount of $14,500 and awarded plaintiff cure on count VI
in the amount of zero.
Plaintiff appeals, arguing that the trial court erred in
refusing to grant his motion to strike defendant's jury demand,
that the jury's verdict in favor of defendant on counts I and II is
against the manifest weight of the evidence, and that the jury's
verdict in favor of plaintiff on count III is a compromise on the
issues of liability and damages. We need only address the first of
these issues because we reverse thereon and remand this cause for
a new trial.
Defendant essentially concedes that no federal law, neither
the Jones Act nor general maritime law, accords it a right to a
trial by jury in state court. Defendant bases its right to a jury
trial on the Illinois Constitution, which provides that "[t]he
right of trial by jury as heretofore enjoyed shall remain
inviolate". Ill. Const. 1870, art. II, 5; Ill. Const. 1970, art.
I, 13. For reasons which we will explain, we do not agree that
the Illinois Constitution guarantees a defendant a right to a jury
trial on either the Jones Act claim, a purely statutory proceeding
which does not provide for such a right, or on the maritime claims
of unseaworthiness and maintenance and cure, which have been tradi-
tionally tried to a court sitting without a jury.
The Jones Act, enacted in 1920, provides in pertinent part:
"Any seaman who shall suffer personal injury in the
course of his employment may, at his election, maintain an
action for damages at law, with the right of trial by jury,
and in such action all statutes of the United States modifying
or extending the common-law right or remedy in cases of
personal injury to railway employees shall apply ***."
46 U.S.C. 688(a) (1982).
The Jones Act made applicable to seamen injured in the course of
their employment the provisions of the Federal Employers' Liability
Act (FELA) (45 U.S.C. 51-60 (1988)), which gives to railroad
employees a right of recovery for injuries resulting from the
negligence of their employer, its agents, or its employees.
O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 38, 87 L.
Ed. 596, 63 S. Ct. 488, 490 (1943). The Jones Act adopts the
entire judicially developed doctrine of liability of the FELA.
American Dredging Co. v. Miller, 510 U.S. 443, 127 L. Ed. 2d 285,
298, 114 S. Ct. 981 (1994). State and federal courts have
concurrent jurisdiction over Jones Act claims. 45 U.S.C. 56
(1988).
Prior to the enactment of the Jones Act, men employed upon a
ship were without a remedy in damages for negligence beyond their
cure and maintenance, unless the injury was a consequence of the
unseaworthiness of the ship or a defect in her equipment. Warner
v. Goltra, 293 U.S. 155, 157, 79 L. Ed. 254, 55 S. Ct. 46, 48
(1934). The maritime law gave to seamen no right to recover
compensatory damages for injuries suffered from negligence.
O'Donnell, 318 U.S. at 40, 87 L. Ed. 596, 63 S. Ct. at 491. The
law allowed recovery only if the injury resulted from the
unseaworthiness of the vessel or her tackle, a matter of strict
liability, and permitted recovery for maintenance and cure,
ordinarily measured by wages and the cost of reasonable medical
care. O'Donnell, 318 U.S. at 40, 87 L. Ed. 596, 63 S. Ct. at 491.
However, no right to recover for personal injuries as a result of
negligence had existed prior to the enactment of the Jones Act.
The Jones Act created in the seaman a new cause of action at law
for personal injuries arising by reason of the employer's
negligence, a cause of action not previously available to the
seaman. Brown v. C.D. Mallory & Co., 122 F.2d 98, 101 (3d Cir.
1941).
The Jones Act has been construed repeatedly by federal courts
to allow only the plaintiff the right to elect a trial by jury.
Rachal v. Ingram Corp., 795 F.2d 1210, 1213 (5th Cir. 1986); Craig
v. Atlantic Richfield Co., 19 F.3d 472, 476 (9th Cir. 1994). In
Craig, the court stated: "The plain language of the Jones Act
gives a plaintiff the option of maintaining an action at law with
the accompanying right to a jury trial. The Act makes no mention
of a defendant." Craig, 19 F.3d at 476. Accordingly, the Jones
Act confers on a defendant no right to a trial by jury. (As
defendant points out, a defendant does have a right to trial by
jury in Jones Act cases brought in federal court where federal
jurisdiction is based on diversity of citizenship. This right to
a jury trial is based on the seventh amendment to the United States
Constitution, which provides that in all suits at common law, where
the value in controversy exceeds $20, the right of trial by jury
shall be preserved. This constitutional provision has been
interpreted to extend beyond the common law forms of action
recognized at the time the bill of rights was adopted and
accordingly applies to even statutory causes of action, such as
Jones Act claims where the amount in controversy and diversity
requirements are satisfied. See Martin v. Heinold Commodities,
Inc., 163 Ill. 2d 33 (1994). The seventh amendment does not apply
to suits brought in state court. Minneapolis & St. Louis R.R. Co.
v. Bombolis, 241 U.S. 211, 217, 60 L. Ed. 961, 36 S. Ct. 595, 596
(1916). In any event, the Jones Act itself confers on defendant no
right to a jury trial.)
Defendant argues, however, that the Illinois Constitution,
which provides that "[t]he right of trial by jury as heretofore
enjoyed shall remain inviolate" (Ill. Const. 1870, art. II, 5;
Ill. Const. 1970, art. I, 13), guarantees him a right to a trial
by jury even in a Jones Act case, if brought in this state.
However, as our supreme court pointed out in Martin v. Heinold
Commodities, Inc., 163 Ill. 2d 33, 72 (1994), the right protected
by this constitutional provision is the right of trial by jury as
it existed at common law. As the supreme court stated in Martin,
"our constitution does not guarantee the right to a jury trial in
any action nonexistent at common law, even if such action is legal
in nature." Martin, 163 Ill. 2d at 72. The court further pointed
out in Martin, "[T]he constitutional provision has never been held
to prohibit the legislature from creating new rights unknown to the
common law and provide for their determination without a jury."
(Emphasis omitted.) Martin, 163 Ill. 2d at 73. The court pointed
out that the constitutional provision was not intended to guarantee
trial by jury in special or statutory proceedings unknown to the
common law. Martin, 163 Ill. 2d at 73. Thus, Illinois's
constitutional right to a jury trial differs from that found in the
federal Constitution. Martin, 163 Ill. 2d at 73.
In Martin, the issue was whether a right to trial by jury was
guaranteed by the Illinois Constitution for causes of action
brought under the Consumer Fraud and Deceptive Practices Act
(Consumer Fraud Act) (Ill. Rev. Stat. 1979, ch. 121
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