# Crabtree v. St. Louis-San Francisco Railway Co. > Appellate Court of Illinois · September 26, 1980 · 89 Ill. App. 3d 35 URL: https://www.frixlaw.com/law-library/cases/9736192 ## Case - **Full name:** FREDERICK CRABTREE, Plaintiff-Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** September 26, 1980 - **Citations:** 89 Ill. App. 3d 35; 411 N.E.2d 19 - **Precedential status:** Published - **Opinion:** On rehearing by Karns - **Judges:** Karns - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9736192 ## Opinion text SUPPLEMENTAL OPINION ON REHEARING Mr. JUSTICE KARNS delivered the opinion of the court: We have granted the plaintiff’s petition for rehearing on the issue of whether we incorrectly concluded that Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490 , 62 L. Ed. 2d 689 , 100 S. Ct. 755 , should be applied retroactively. Plaintiff cites Ingle v. Illinois Central Gulf R.R. Co. (Mo. App., Eastern Dist., 1980), 603 S.W.2d 32 , which held that the guidelines in Chevron Oil Co. v. Huson (1971), 404 U.S. 97 , 30 L. Ed. 2d 296 , 92 S. Ct. 349 , required that Liepelt be applied prospectively only. In Ingle, the test for prospective application stated in Chevron Oil Co. was quoted as follows: “First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied * ° ° or by deciding an issue of first impression whose resolution was not clearly foreshadowed ° Second, it has been stressed that ‘we must 0 0 0 weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ 060 Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.’ * * * ( 404 U.S. at 106-107 , 92 S. Ct. at 355 , 30 L. Ed. 2d 305 -06. Citations omitted).” ( 603 S.W.2d 32, 34 .) Applying these principles, Ingle reasoned that (1) the Liepelt rule was one of first impression in light of the prior split in the Federal circuits and the Missouri rule barring the nontaxability instruction, (2) the retroactive application of Liepelt would not serve the purpose of preventing excessive judgments where the damages awarded were not excessive, and (3) the retroactive application of Liepelt would produce results substantially inequitable to the plaintiff where the defendant did not raise the question of excessiveness on appeal and there was no suggestion that the defendant was prejudiced by the failure to give the nontaxability instruction. In response, the defendant has cited Lang v. Texas & Pacific Ry. Co. (5th Cir. 1980), 624 F.2d 1275 , where it was held that a retroactive application of Liepelt would not result in “manifest injustice.” This conclusion was reached even though the trial court had relied on the settled law in the fifth circuit in refusing the nontaxability instruction. The court also noted that in Chevron Oil Co., the Supreme Court had been faced with the question of whether to apply retroactively Rodrigue v. Aetna Casualty & Surety Co. (1969), 395 U.S. 352 , 23 L. Ed. 2d 360 , 89 S. Ct. 1835 , where it had held that a Louisiana one-year statute of limitations applied in actions such as the plaintiff’s in Chevron Oil Co. The Supreme Court declined to apply Rodrigue retroactively because the plaintiff would have been deprived of any remedy whatsoever. Lang found that no comparable hardship would result in requiring a new trial in which the jury was instructed as to the nontaxability of a personal injury award. We find Lang persuasive. We also note that the Illinois Appellate Court, as well as other courts, while not expressly considering the retroactivity issue, has retroactively applied Liepelt. Oltersdorf v. Chesapeake & Ohio R.R. Co. (1980), 83 Ill. App. 3d 457 , 404 N.E.2d 320 ; Cazad v. Chesapeake & Ohio Ry. Co. (4th Cir. 1980), 622 F.2d 72 ; Seaboard Coastline R.R. Co. v. Yow (1980),_Ala._, 384 So.2d 13 . Liepelt was held controlling in Oltersdorf v. Chesapeake & Ohio R.R. Co. by the same division of the Appellate Court for the First District whose opinion in Liepelt v. Norfolk & Western Ry. Co. (1978), 62 Ill. App. 3d 653 , 378 N.E.2d 1232 , had been reversed only a month earlier. We would feel constrained to follow a prior decision of the appellate court on essentially the same issue, unless that decision was clearly erroneous. Mattis and Yalowitz, Stare Decisis Among [Sic] the Appellate Court of Illinois, 28 DePaul L.J. 571 (1979). Defendant has presented us with excerpts from the plaintiff’s brief and petition for rehearing before the Supreme Court in Liepelt, in which the plaintiff argued that the great majority of State courts and Federal circuits do not permit the nontaxability instruction and that a departure from this consensus should be prospective only. The petition for rehearing advanced the same arguments made before this court. Rehearing was denied April 14, 1980. ( 445 U.S. 972 , 64 L. Ed. 2d 250 , 100 S. Ct. 1667 .) The court’s implicit rejection of the prospectivity argument is consistent with our original determination that if the Supreme Court had intended Liepelt to be prospective only, it would have said so, if not in its original opinion, then certainly on rehearing. We therefore decline to alter our original decision. JONES, P. J., and KASSERMAN, J., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9736192. Public record. Not legal advice.