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Adamaitis v. Hesser

FEBRUARY 15, 1965.




Appeal from the Circuit Court of Cook County; the Hon. JOSEPH BUTLER, Judge, presiding. Affirmed.


Defendant, Frank Hesser, appeals from a judgment of $7,500 for personal injuries suffered by the plaintiff, Carole Adamaitis, as the result of a collision when a car driven by defendant struck the rear of a car driven by plaintiff.

The sole issue was the nature and extent of plaintiff's injury and defendant contends that errors in the trial prevented him from having a trial free from prejudice.

While defendant admits that not every error, by itself, will vitiate the verdict of a jury, he contends that an accumulation of errors can indicate to the reviewing court that there existed the possibility that the verdict was largely influenced by those errors.

An examination of the evidence and proceedings on trial is therefore necessary to consider defendant's appeal for a new trial on the issue of damages or remittitur.

Early Sunday evening August 4, 1957 plaintiff, driving her car, stopped for traffic at Foster and Paulina Streets in the City of Chicago. There were two cars in front of her. She testified she heard a "screeching sound and felt a severe impact in back." She went forward against the wheel and when "I came back I felt my neck snap after I struck the car in front." She got out of the car and was assisted by a police officer. She said she was badly shaken up and her knees were "going to" give out. She denied talking to defendant, a physician, at the scene although he testified that she told him she was not hurt and refused his offer to have her X-rayed, hospitalized and given medical care. She saw damage to the front bumper and there was a dent in the rear bumper and trunk of her car.

Upon arriving home she began getting severe pain at the neck which worked down her shoulder and back. She applied a heating pad, tried to reach her family physician and, when unable to do so, made an appointment with Dr. Carder for the next morning. Dr. Carder had X-rays taken at the MacNeal Memorial Hospital, recommended a Queen Anne collar and prescribed medicine for pain. She wore the collar for three weeks and took heat treatments from Dr. Carder once or twice a week. She returned to work after losing twenty-five days in August and November. She saw her family physician, Dr. Plzak, after she returned to work. He prescribed medication, a sleep board and suggested a heating pad when she "laid down." Her employer suggested a bone specialist, Dr. Rabin, who took X-rays of her in October or November and told her to keep up with the same treatments. She took aspirin and bufferin which gave her some relief along with the use of the heating pad. She had further X-rays taken at Loretto Hospital and submitted to an examination by Dr. Stack for the defendant in October, 1963. He ordered X-rays taken of her at Passavant Hospital. She further testified that she had lower back pains for a year but it had improved, and she could not say it bothered her. But she still complained of recurring severe pains in the neck and shoulder. When these pains were present she applied the heating pad.

Dr. Carder testified that he saw plaintiff the day after the occurrence. Her subjective complaints were stiffness in the neck, headaches and pain in the back. Objectively, he found she had a stiffness in the neck when attempt was made to move it from side to side or up and down. Stiffness and muscle spasm, he said, go together. He sent her to MacNeal Memorial Hospital for X-rays where they were interpreted, but not by him. He recommended a Queen Anne collar to be worn until the spasm subsided. He also prescribed A.P.C. with codeine for pain. He saw her five times, the last being August 26 when she still had the same complaints and said she was going to her family doctor for further treatments. She was also given diathermy treatments by Dr. Carder to increase circulation in the area.

Dr. Rabin testified that plaintiff, in October 1957, had spasm in the neck muscles together with tenderness in the back of the neck. Otherwise the findings were normal. His diagnosis from his examination of the plaintiff and the X-rays was that she sustained a whiplash type sprain of the neck with multiple anterior subluxations of the second cervical vertebra on the third, the fifth cervical vertebra on the sixth, tearing of the posterior longitudinal ligaments of these levels, as well as sprain of the lower back, with some narrowing of the disk space between L-5 and S-1 and a congenital spina bifida occulta. The X-rays he had taken in January 1964 revealed the same condition and it was permanent in nature.

Dr. N.S. Zeitlin, interpreting an X-ray taken August 5, 1957, found an abnormal flattening of the sixth cervical disk between the sixth and seventh cervical vertebrae. An X-ray taken May 3, 1958, he said, showed the sixth cervical disk to be "literally one-half the size of the space below and one-half the size of the space above." He said it was constant and a permanent condition. He found the same condition in the January 1964 film.

The errors, defendant contends, occurred during the examination of Dr. Plzak, Virginia Venn and Dr. Stack.

Dr. Plzak, called on behalf of the plaintiff, was her family physician. He was unavailable at the time of the occurrence but subsequently rendered her treatment. He could not recall the treatment and did not have records available because, as he testified, a flash flood at his home caused their destruction. Plaintiff then produced, what we gather from the scant description in the record, an original typewritten letter on the doctor's stationery, but not signed by him. It was in possession of plaintiff's attorney, having been received at his request for a report of treatment the doctor rendered plaintiff after the occurrence. The doctor stated that he had no independent recollection of the treatments but that the document did refresh his recollection, having seen it at the office of plaintiff's attorney prior to his testifying. It was again shown to him at the trial over defendant's objection. He then testified that he remembered treating the plaintiff September 7, October 18, November 29 and December 19, 1957. At that time she had pain and stiffness in the neck, back and shoulder. He diagnosed it as a severe whiplash injury to the neck and lower back. He was cross-examined in detail regarding these treatments as well as subsequent complaints plaintiff was treated for but which have no connection with the instant occurrence.

Defendant argues it was error to allow the doctor to refresh his recollection from the report because the testimony indicated that he saw it for the first time on the day of the trial; he had no copy of it in his files, and he was never asked whether notations had been made by him or, if so, when. His records for that period having been destroyed, no copy would be available. When inquiry was made of him on cross-examination regarding the notations on the report, he answered: "I would have dictated them, because I don't type." The only plausible inference from the record indicates that he dictated the letter and caused it to be mailed. He unequivocally asserted that it did refresh his recollection and nothing in the record or detailed cross-examination controverted or even slightly indicated otherwise. Defendant relies on Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21, 57 N.E.2d 216 (1944), but we find that case inapposite. The statement of law in People v. Krauser, 315 Ill. 485, 508, 146 N.E. 593 (1925), is more applicable:

The rule in this State is that a witness can testify only to such facts as are within his knowledge and recollection, but he is permitted to refresh and assist his memory by the use of a written instrument, memorandum or entry in a book, and it is not necessary that the writing should have been made by the witness himself or that it should have been an original writing, ...

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