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Haizen v. Yellow Cab Co.

MAY 13, 1963.

JACK HAIZEN, PLAINTIFF-APPELLANT,

v.

YELLOW CAB COMPANY, A CORPORATION, JOHN E. NEIGHBORS, AND THOMAS J. DOWNS, ADMINISTRATOR OF THE ESTATE OF ARTHUR H. SAUNDERS, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. GEORGE SPITZ, Judge, presiding. Judgment reversed and cause remanded with directions.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied June 5, 1963.

Plaintiff brought this action in the Circuit Court of Cook County to recover for injuries sustained when the cab in which he was a passenger collided with another car. Joined as defendants were the owner of the cab, the Yellow Cab Company, the driver of the cab, John E. Neighbors, and the owner and driver of the other car, Arthur H. Saunders. Upon the death of Mr. Saunders, Thomas J. Downs, the administrator of the Saunders' estate, was substituted as co-defendant.

The accident occurred at the intersection of Archer Avenue and Pulaski Road. The cab was headed in a southwesterly direction on Archer, about to make a left turn onto Pulaski, when it collided with the Saunders' car, which had been headed in a northeasterly direction on Archer. The collision rendered plaintiff unconscious and he sustained injuries to his neck, shoulder, arm and hand. Prior to this incident plaintiff had been employed as a sales manager at a yearly salary of $25,000. Plaintiff was unable to return to work for several weeks after the accident. When he was able to return to work his injuries prevented him from continuing his prior employment, necessitating new employment at a salary of $18,000. Plaintiff's proven medical expenses were over $475.

At trial each driver contended the other was at fault. The jury's verdict found Yellow Cab Company liable and assessed damages at $500. A not guilty verdict was returned as to Downs, but defendant Neighbors was not mentioned in the verdict even though verdict forms had been provided.

After the verdict was returned, plaintiff made several post-trial motions. He requested a new trial as to Downs and presented alternative motions as to Yellow Cab, either for a new trial as to damages alone or for a new trial as to all issues. All motions were denied and this appeal was taken. *fn1

Plaintiff filed his notice of appeal on July 12, 1961, and immediately encountered difficulties. These difficulties arose from the fact that the only stenographer present during the trial was employed by defendant and although plaintiff was willing to bear the expense, he was denied a copy of the transcript. Plaintiff's counsel was then kept busy for the next few months either appearing before or presenting motions to this court and the trial judge in an effort to secure a transcript so as to be able to prosecute the appeal. The trial judge, a visiting jurist, had returned to DeKalb by this time. Both the trial judge and this court denied plaintiff's requests either for an order directing that the stenographer furnish him a copy of the transcript or for an order allowing him to take the stenographer's deposition. Plaintiff then directed his efforts toward compiling a bystander's bill of exceptions containing a narrative concerned primarily with the issue of damages. This bystander's report is the only record before us on this appeal.

After we denied plaintiff's motions for an order directing the stenographer to provide a copy of the transcript, and after briefs were filed, the Supreme Court handed down its opinion in Tansor v. Checker Taxi Co., 27 Ill.2d 250, 188 N.E.2d 659. There, the Supreme Court held that in situations such as this, an order should be granted directing that a copy of the transcript be given appellant. We were, therefore, in error in not allowing plaintiff's motions.

Defendant first challenges the timeliness and adequacy of the report of proceedings filed by plaintiff. As indicated previously, plaintiff encountered many difficulties in perfecting his appeal and was forced to request numerous extensions of time. After examining the record, we conclude that the filing of the report of proceedings was timely and while we agree with defendant that the report is incomplete, we feel it is sufficient to enable us to decide the case on the merits.

Plaintiff's primary objection on this appeal is the adequacy of the award. Defendant contends that should be merits of the case be reached, the judgment should be affirmed since the award of $500 is, defendant contends, $500 more than plaintiff should have received. This argument is based on the fact that the jury failed to return a verdict as to the driver of the cab and this is, in law, equivalent to a finding of not guilty. Wabash R. Co. v. Keeler, 127 Ill. App. 265. Therefore, defendant insists, the judgment entered against it was erroneous since its liability was predicated solely on the negligence of its driver, who was found not guilty. Hayes v. Chicago Tel. Co., 218 Ill. 414, 75 N.E. 1003; Devore v. Toledo, P. & W. Railroad, 30 Ill. App.2d 409, 174 N.E.2d 883. Defendant recognizes, however, that it has waived this argument by neither making a timely motion after the verdict was returned nor prosecuting an appeal, yet it insists we should do no more than affirm the judgment entered below. Defendant is saying, in effect, that since it waived its objection, plaintiff's objections should also be considered waived. We cannot accept this.

We must agree with plaintiff's contention that the award of $500 was palpably inadequate. This award barely exceeds the out of pocket expenses incurred for medical treatment. There is, essentially, no award for pain and suffering or for loss of wages. If plaintiff proved liability, he was entitled to recover for these items also. The collision caused plaintiff to be thrown against the bulkhead of the cab, twisting his neck, causing bleeding from his scalp and mouth and injuring his arm. He was unable to return to work for a period of about two months and then only on a part time basis. Further, he was required to seek new employment at a lower salary.

The nature and extent of plaintiff's injuries were testified to by Dr. S. Siffert, an orthopedic specialist, and Dr. Donald S. Miller, a certified orthopedic surgeon. Dr. Siffert x-rayed plaintiff's injuries and ordered plaintiff to wear a cervical collar and use a traction harness while confined to bed. Dr. Miller testified that the injuries were permanent and he linked the injuries to the accident.

The jury was presented a case in which it could find liability against one or more of three defendants. It assessed liability against the cab company, which, as a public service carrier, owed plaintiff the highest degree of care. Once the jury assessed liability it became its duty to compute damages according to the evidence presented and the court's instructions. This they manifestly failed to do. It is true that courts, especially reviewing courts, are reluctant to overturn the jury's findings as to damages, but "an award cannot be upheld when serious injuries are sustained and a small or nominal amount is awarded, especially when the injuries are permanent; . . ." 15 ILP, Damages, sec 162. Given the nature and extent of plaintiff's injuries, the amount of out of pocket expenses, and the loss of wages, it would appear that the jury either ignored the evidence, failed to follow the court's instructions, or compromised the question of liability and damages. If liability were clearly found against defendant, then plaintiff was entitled to an award adequately compensating him for his proven losses. If defendant were not liable, then no award should have been assessed against it. It is also true that when the record clearly shows the jury properly decided the question of liability, the court will reverse as to damages alone. Stroyeck v. A.E. Staley Mfg. Co., 26 Ill. App.2d 76, 167 N.E.2d 689. However, on the basis of the incomplete record before us, we cannot say that liability is clear. Therefore, there must be a new trial as to all issues.

Since a new trial is ordered the question arises as to whether defendant will be able to raise, as a bar to an action against it, the fact that there was no verdict as to the driver, Neighbors, and thereby claim that this is equivalent to a finding of not guilty. Insofar as plaintiff's complaint charges the company with independent acts of negligence, the doctrine of estoppel by verdict cannot be used. However, we feel that defendant is precluded entirely from raising the issue of estoppel. As we stated previously, defendant has waived any objection it might have to the finding of guilty as to it even though the driver was not found guilty. To allow it to raise the issue when the matter is retried would be a manifest injustice. As the court stated in Voorhees v. Chicago & A.R. Co., 208 Ill. App. 86, 95, "[a]n estoppel does not depend upon technicalities but the broad principle of justice, and ...


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