Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. The judgment of the Circuit
Court of Champaign County, Illinois, is affirmed.
This is an appeal by the defendant, Judith Treat, from a judgment entered against her in the Circuit Court of Champaign, Illinois, in the amount of $11,000.
Defendant alleged, as a defense to plaintiff's complaint for personal injury, a release executed by the plaintiff. The reply of the plaintiff pleaded that the release was executed under a mutual mistake as to the nature and extent of plaintiff's injuries and upon a grossly inadequate consideration.
The trial court, hearing evidence as in equity, determined that the release was void by reason of mutual mistake of the parties in the execution thereof, that there was no negligence on the part of the plaintiff in failing to discover the scope and extent of her injuries, and that the consideration was inadequate. Thereafter, the case proceeded as in law, a jury being impanelled and evidence heard. At the close of plaintiff's evidence, defendant's motion for a directed verdict was denied. At the close of all of the evidence, defendant's motion for a directed verdict was denied and the court granted plaintiff's motion for a directed verdict. The jury, thereupon, assessed the damages.
The defendant's theory is that the court erred in setting aside the release, and her post-trial motion was directed solely to that issue.
The facts of the accident and the history of the plaintiff's condition require careful examination in order to determine whether the trial court erred in setting aside the release.
Plaintiff's automobile was stopped for a stop light at the time of the accident, about 10:00 o'clock p.m., March 24, 1961. The defendant's car, unlighted, came up from behind plaintiff's car, with no apparent attempt to slow or stop, and struck plaintiff's car in the rear. Plaintiff realizing, at the last moment, that defendant's car was not going to stop, braced herself for the blow. The impact snapped her neck, threw a package of cigarettes against the windshield in such a manner that it bounced back and hit her face below the eye leaving a bruise. Plaintiff was dazed. Substantial damage was done to the grillwork and headlight on the defendant's car.
Plaintiff was taken to the hospital and x-rayed from the waist up. Dr. Adkins gave plaintiff a prescription for pain, apparently localized in her neck between her shoulders and described as being like a cramp or muscle spasm.
Plaintiff returned to work the next day and the pain subsided within a few days. She states that by the last of April she had no pain at all.
On May 10, 1961, plaintiff signed the release for $125. At this time she had had no pain for a few weeks, and she had called Dr. Adkins who advised her that he found no dislocation from the x-rays. He also gave her his opinion that she would be all right.
Plaintiff had no recurrence of symptoms until July 1961, at which time the muscle spasms, cramps and stiff neck recurred, this time accompanied by a numb feeling in the hand. The condition grew worse and the symptoms occurred with greater frequency. On the last day she worked, September 10, 1961, plaintiff could not straighten her neck.
Plaintiff again conferred with Dr. Adkins in September. He gave her an injection and suggested hospitalization which she had for eight days. On the fifth day of hospitalization, Dr. Adkins called Dr. Walter Petersen for consultation. Again x-rays were taken from the waist up. The x-rays were again negative and the doctor recommended a cervical collar. On October 19, 1961, plaintiff again inquired of Dr. Petersen what could be done with her neck. A myelogram examination was made of her neck. This disclosed a defect between the sixth and seventh cervical vertebrae. Being still somewhat uncertain, the doctors confirmed the condition with a discogram on November 8, 1961. This is done by injecting the discs with long needles put in from the front of the neck.
Dr. Petersen testified that normal x-rays would not disclose the condition since it takes a special technique with contrast media to make a ruptured disc show up. These procedures were beyond plaintiff's financial means and assistance was first obtained from the Division of Vocational Rehabilitation.
Following the diagnosis Dr. Petersen did a disc removal and a fusion of the joint between the sixth and seventh cervical vertebrae with a bone graft from the patient's hip. The operative procedure was done from the front of the patient's neck by moving aside the large vessels and breathing and swallowing tubes. Following the operation plaintiff was kept in a four-poster type neck brace to effect the fusion, and thereafter was given therapy. Dr. Petersen saw her monthly until May of 1962, and thereafter less ...