Baker v. Spaulding Women's Apparel, Inc., 83 Ill. App. 2d 455 (1967)

May 9, 1967 · Illinois Appellate Court · Gen. No. 50,800

83 Ill. App. 2d 455

Ardelia Baker, Plaintiff-Appellant, v. Spaulding Women’s Apparel, Inc., Harry Rubin, et al., Defendants-Appellees.

Gen. No. 50,800.

First District, Second Division.

May 9, 1967.

David S. Minor, of Chicago, for appellant.

Morgan, Halligan, Lanoff & Cook, of Chicago (John A. Cook and Philip L. Bransky, of counsel), for appellees.

MR. JUSTICE BURKE

delivered the opinion of the court.

In an action for conpensatory and punitive damages on allegations of false imprisonment and other wrongs and on issue joined, the jury returned a verdict against the defendants for $5,000 and judgment was entered thereon. On the hearing of the post-trial motion the court, without the consent of plaintiff, entered a remittitur of $4,250, thereby reducing the judgment to $750. The court also vacated the $5,000 judgment but did not otherwise rule on the post-trial motion. Plaintiff appeals.

Plaintiff’s first point is that the trial judge erred in substituting his judgment for that of the jury in assessing damages. Where the court finds that there should be a remittitur or a new trial the proper procedure is to give the plaintiff an opportunity to accept the remittitur, with the knowledge that a refusal to accept may result in an order allowing a new trial. The court had no authority to enter a remittitur without the consent of the plaintiff. Rasmussen v. National Tea Co., 304 Ill App 353, 358, 26 NE2d 523.

Therefore the judgments for $5,000 and for $750 are reversed and the cause remanded with directions to rule on the post-trial motion and for further proceedings.

Judgments reversed and cause remanded with directions.

LYONS, P. J. and BRYANT, J., concur.