Appeal from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding. Judgment affirmed.
This cause was originally before the Appellate Court for the Fourth District on an appeal from a judgment in the sum of $65,000 based on a verdict of a jury in a Federal Employers' Liability Act case instituted by Courtney L. Braswell, plaintiff, against The New York, Chicago and St. Louis Railroad Company, defendant. Courtney L. Braswell is now deceased and Dorothy Braswell, Administratrix of the Estate of Courtney L. Braswell, has been substituted as a party plaintiff.
On June 3, 1963, the Appellate Court reversed the judgment of the circuit court and entered judgment in favor of the defendant company. Braswell v. New York, C. & St. L.R. Co., 43 Ill. App.2d 21, 192 N.E.2d 592. Thereafter, a petition for rehearing was denied by the Appellate Court, and plaintiff's petition for leave to appeal to the Supreme Court of Illinois was denied. Plaintiff then filed a petition for writ of certiorari to the Supreme Court of Illinois in the Supreme Court of the United States; that Court granted the writ and reversed the judgment, Braswell v. The New York, C. & St. L.R. Co., No. 1004, 377 U.S. 405, 84 S Ct 1628; citing Rogers v. Missouri Pacific R. Co., 352 U.S. 505, 77 S Ct 443, 1 L Ed2d 493. The defendant then filed a motion for this Court to consider defendant's motion for a new trial which this Court had not previously considered in its original opinion. This motion was granted over plaintiff's objection and we now consider defendant's alternative motion for a new trial. We will not repeat the facts as they are fully set out in Braswell v. New York, Chicago and St. Louis R. Co., 43 Ill. App.2d 21, 192 N.E.2d 592. Suffice it to say that the facts, as they pertain to the issues now before this Court, show that plaintiff limited his right to recover, to defendant's alleged negligence in permitting him to return to work and in assigning him to a job which it was contended he was physically unable to perform.
Defendant has assigned six alleged errors in support of its contention for a new trial, namely: (1) excessiveness of verdict; (2) exclusion of a letter (Defendant's Exhibit No. 2) and conversation concerning its contents from evidence; (3) admission of the opinion of an examining doctor into evidence; (4) the alleged giving of oral instructions to members of the jury; (5) improper argument and prejudicial conduct of plaintiff's counsel; and (6) refusal to give defendant's tendered instruction No. 14.
In support of its contention that the verdict was so grossly excessive as to indicate it was the result of passion and prejudice defendant cites various Illinois and Federal decisions. Plaintiff likewise cites cases from the same jurisdictions to support the contention that the verdict was not excessive. As was said in George C. Vaughan and Sons v. Dyess, 323 S.W.2d 261 (Tex Civ App), in which a $75,000 judgment on behalf of a 42-year-old sheet metal worker who sustained fractures of two transverse processes of the lumbar spine resulting in permanent pain and inability to do heavy work, was found not to be excessive,
". . . . A study and comparison of many cases present a rather amusing variety of thinking from which there can be only one conclusion. Each case must rest upon its own state of facts and then hazard the opinion of those who are called upon to evaluate the damages, including the pain and suffering. . . . Actually, the measure of damages in each case is a matter of opinion of the person or persons whose duty it becomes to fix those damages. Courts in most instances have always been reluctant to disturb the findings of a Court or jury on such matters where there is any evidence to support it. . . ."
At the time of plaintiff's collapse he was 55 years of age; his doctors, as well as the medical director of defendant, were of the opinion that he was then capable of employment. He became unconscious and collapsed while performing the work assigned him by his employer, was hospitalized and was found to have a marked compressed fracture of the first lumbar vertebrae and a slight compression deformity of the second lumbar vertebrae. He was in traction and hospitalized for 10 days. Despite evidence of satisfactory healing, there was undisputed evidence of pain and continued suffering, and there is no doubt that this condition, along with extensive surgery which he had undergone before he was qualified for rehiring by defendant, left him totally unable to work. Plaintiff made no claim for loss of wages or hospital and medical expenses; and no showing of life expectancy was made. Defendant offered no medical evidence, although it had x-rays of plaintiff's spine taken both before rehiring plaintiff and after his collapse.
[1-4] We need not cite authority that courts take judicial notice of the reduced purchasing power of the dollar, and that we must consider that the verdict reflects an inflationary period in our economy. The question of excessiveness is not to be determined by what we as judges think the damages should have been. Under our system of jurisprudence it is the jury, and not the reviewing Court that determines what amount will compensate a plaintiff. The assessment of damages is preeminently a jury function. Parham v. Carl W. Linder Co., 36 Ill. App.2d 224, 183 N.E.2d 744; Tomlinson v. Chapman, 24 Ill. App.2d 192, 164 N.E.2d 240. We believe reasonable men might differ in their judgment on the amount of damages sustained by plaintiff, and therefore cannot say that the jury was moved by passion and prejudice.
The principal contention with reference to the trial court's rulings on admission of evidence has to do with the refusal to allow the defendant's medical director, Dr. Houk, who qualified plaintiff to return to work, to testify that he had relied on the advice of Dr. Burford, the head of the Medical and Surgical Chest Service at Barnes Hospital in St. Louis, as expressed in a letter dated March 4, 1957, (Defendant's Exhibit No. 2) and later by telephone; refusal of defendant's offer to so prove; refusal to receive the letter into evidence; and refusal to permit defendant to disclose the contents of the letter to the jury.
Plaintiff had worked for the defendant company as a section gang laborer since 1947. In November of 1955, on the advice of his personal physician, he entered Barnes Hospital at St. Louis, Missouri. There it was found that he was suffering from a bronchogenic carcinoma of the right lower lobe of the right lung, and a portion of the lung was removed surgically. Thereafter, an infection developed in his chest cavity and in a series of operations which followed, he had a rib resection drainage of his right chest and a two stage thoracoplasty, or plastic repair of his chest cavity. On October 1, 1956, he was given a written release by Dr. Ferguson, one of the surgeons who had treated him, reciting that he was able to return to work. For a period of eight months, until he was permitted to return to work on June 13, 1957, plaintiff made repeated demands to the defendant company that he be returned to the job as a section hand.
Dr. E.F. Wahl, a local examining physician for the defendant company, refused to certify him for employment and plaintiff went to Cleveland, Ohio, on two different occasions, where he was examined by Dr. D.O. Darrah, assistant medical director for the defendant company, who had refused to pass him for work. On plaintiff's second visit to Cleveland, Dr. Darrah requested that plaintiff obtain a written report from Dr. Thomas H. Burford, who was in charge of the doctors that operated upon the plaintiff at Barnes Hospital. Plaintiff then went to Dr. Burford and requested him to write a letter to Dr. Darrah, which he did on March 4, 1957. The letter written by Dr. Burford, (Defendant's Exhibit No. 2), gave a resume of the surgical operations and treatment performed on the plaintiff and the concluding part of the letter, which is the part specifically objected to by plaintiff, reads as follows: "We discharged him as cured from his empyema on September 6, 1956, and told him that he would be able to return to work on October 1, 1956. I consider him definitely employable."
This letter was received by Dr. Darrah, and soon after its receipt, it reached the office of Dr. John W. Houk, an industrial surgeon and the medical director for defendant company. Dr. Darrah was not a witness. Dr. Houk, called by defendant, testified that he had never examined plaintiff, but knew about him; that he received a letter from Dr. Burford whom he knew by professional reputation, and that his record showed that plaintiff was qualified for work on June 10, 1957. He was further permitted to testify, "It is my policy to talk with these doctors if there is any doubt in my mind. I usually call them explaining the fact that very few surgeons or attending doctors are familiar with the nature of a man's work. A man's health may be improved to the point where he wants to go to work and the doctor thinks he can, but I like to define their duties before we send a qualification out. I talked with Dr. Burford by telephone sometime after receiving his letter," and further testified, "I did have a telephone conversation with Dr. Burford. His letter . . . indicates that a copy went to Mr. Courtney Braswell. I had the ultimate responsibility of making the determination as to whether Mr. Braswell should be reemployed. I okay'd him for return to work in June."
On objection, Dr. Houk was not permitted to testify as to what was said in his telephone conversation with Dr. Burford nor whether he relied to any extent upon the letter or telephone conversation in reaching the decision to qualify plaintiff for work. An offer of proof was then made wherein defendant offered to prove that in the telephone conversation Dr. Burford said that in his opinion plaintiff was qualified to be returned to the job where he was subsequently reemployed, and that Dr. Houk relied upon the letter, as well as the telephone conversation, in arriving at the conclusion that plaintiff was qualified to go back to work. The offer of proof was denied and a reoffer of proof, eliminating therefrom any reference to the telephone conversation was made, which was also denied. Likewise, on objection of plaintiff, the letter, defendant's Exhibit No. 2, was denied admission into evidence.
Defendant contends that plaintiff solicited Dr. Burford's letter and opinion, and used both in his efforts to persuade defendant company to rehire him, and that Dr. Burford's expressions, in both his letter and telephone conversation, in legal effect, became those of ...