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Daly v. Vinci

JULY 27, 1964.

JOHN B. DALY, PLAINTIFF-APPELLANT,

v.

SAM VINCI, ET AL., CO-PARTNERS D/B/A NICK VINCI AND SON, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. IRWIN N. COHEN, Judge, presiding. Reversed and remanded with directions that a new trial be held on the issue of damages alone.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

The plaintiff appeals from a jury verdict of $500 returned in an action for personal injuries. The plaintiff's theory of the case as stated in his brief is that:

The jury, having found the defendant guilty, was under a duty to assess damages in accordance with the evidence and instructions of the court. An award of Five Hundred Dollars ($500.00), where there have been proved expenses for hospitalization, doctor bills, physiotherapy and drugs of $1,365.73, is grossly inadequate and ignores the evidence as to the nature and extent of the injury and loss of income. The plaintiff is entitled to a new trial as to damages only, or in the alternative to a new trial.

It is defendants' theory that the assessment of damages by the jury, a matter wholly within their province, was not incorrect as both the nature and extent of the plaintiff's injuries and damages proximately flowing therefrom were controverted questions of fact; that the jury was amply justified in assessing the damages as they did; and that the trial court properly denied plaintiff's post-trial motion.

The applicable law as stated in 15 ILP Damages, Sec 162 reads:

The courts are reluctant to interfere with the discretion of the jury as to the amount of damages to be awarded, and ordinarily will not overturn the jury's finding for inadequacy of its award unless the award is palpably inadequate or against the manifest weight of the evidence . . . However, an award cannot be upheld where serious damages are sustained and a small or a nominal amount is awarded, especially where the injuries are permanent; or where the plaintiff has been injured and has also incurred expenses as a result of the injuries, and an award is made for less than the amount of the expenses.

In a case which depends so much upon a consideration by this court of the facts, it will be necessary to set out a lengthy summary of the evidence adduced at trial. The trial record is taken up almost entirely with plaintiff's case. The defendants produced only one witness, a court reporter, whose testimony was directed solely at impeaching one of plaintiff's medical witnesses.

John B. Daly, the plaintiff, called as a witness on his own behalf, testified that he is an employee of the Chicago Transit Authority and that prior to the occurrence, which is the subject of this suit, he was employed as a special legal investigator for the C.T.A. His story as to the collision was simply that on January 14, 1958, he was struck from the rear (while his car was standing still behind a stopped truck) by the station wagon being driven by one of the defendants, Sam Vinci. He was pushed forward and backward by the force of the collision, but didn't feel any physical pain at the moment of impact.

A summary of plaintiff's testimony as to his injury, is as follows. On getting out of the automobile he felt a pain in the back of his neck. He remained at the scene of the occurrence about fifteen or twenty minutes and after he had driven his car about four blocks he said, "I noticed that the pain was radiating up to my head and shoulders and my arms were getting heavy and weak." After several hours at home he called Dr. Rocco Fazio, his family physician who examined him that afternoon in his office and prescribed some pills and heat. He remained in bed most of the time until January 20th, when he went to his office for about three hours. At the direction of Dr. Fazio he was in the St. Bernard's Hospital from January 22nd to February 1st, where he was put in traction and given pills. On February 7, 1958, Dr. Charles E. Corcoran, to whom he was referred by Dr. Fazio, gave him a neurological examination. He remained home from February 1st to March 3rd, during which time he was in traction. He said he went back to work on March 3rd and felt "pretty good," but "then every day it seemed to be getting worse." On March 26th he said his "neck was rigid and the pain was real severe." He went to Dr. Stephen Mosny, the company doctor, who examined him and advised him to see Dr. Claude Lambert, an orthopedic surgeon. Dr. Lambert prescribed a "collar" which held his head rigid and advised him to take diathermy treatments." He wore the collar at home continuously for about a month and during that time discontinued taking traction. He took numerous physiotherapy treatments and applied heat pads and was off work from March 27th to June 23rd. When he returned to work on the latter date he was given an office assignment instead of outside work and was permitted to work on a shorter day schedule. His medical expenses are itemized as follows:

St. Bernard's Hospital $ 211.50 Dr. Rocco Fazio 365.00 Dr. Claude Lambert 200.00 Louis Pelzman (physiotherapist) 250.00 Prescriptions, medicine etc. 339.23 _________ $1,365.73

Daly further testified that while he was working for the C.T.A. he was also employed by Frank J. Foley and Company on weekends. His average earnings in 1956 and 1957 on this job were more than $2,400 each year. After March 23, 1958, he never returned to Foley's.

The plaintiff produced four medical witnesses on his behalf. We will not set out the treatments and medications prescribed by the various doctors, but will limit ourselves to a review of their diagnostic findings. The first doctor to see the plaintiff was his family physician, Dr. Rocco Fazio, whose testimony was introduced by way of deposition. Dr. Fazio testified that he examined the patient on the day of the accident and found objective marked limitation on motion of the head and neck, particularly in rotation flexation and extension. There were signs of discoloration under the skin and trigger-point tenderness in both the left and right side of the neck muscles. Subjectively the patient complained of pain in the neck and inability to extend his head. On the date of the injury the doctor diagnosed the patient's condition as a "traumatic subluxation (strain) of the cervical spine, traumatic cervical myositis, with hematoma into the muscle tissue." The patient's symptoms, both objective and subjective, were in the doctor's opinion a result of injuries sustained on January 14, 1958. Dr. Fazio continued to treat the plaintiff and on September 25th, he modified his diagnosis to that of a whiplash injury with hematoma of the neck muscles, peripheral neuritis and aggravation of cervical arthritis, all caused or aggravated by the accident. He said that,

"In my opinion, any lesion which is related to the central nervous system, as in this case, seems to have a tendency to get progressively worse toward the end of the day. As the tension mounts, physical activity mounts, ...


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