Appeal from order granting new trial from the Circuit Court
(formerly Superior Court) of Cook County; the Hon. BENJAMIN WHAM,
Judge, presiding. Affirmed in part, reversed in part, and
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 8, 1966.
The jury in this personal injury case returned a verdict for $100,000 in favor of plaintiff. Defendant's post-trial motion for judgment notwithstanding the verdict was denied. The court also denied defendant's motion for a new trial, but on the condition that plaintiff accept a remittitur of $65,000. When plaintiff refused to do this, a new trial was granted as to both liability and damages. We allowed plaintiff to file an appeal from that interlocutory order.
We shall first relate the facts as presented through the testimony of plaintiff and her witnesses.
On September 27, 1957, plaintiff and her husband were attending a Moose Lodge convention at the Morrison Hotel where they had engaged a private room. Plaintiff was 33 years old at that time and the mother of three children. At about 7:30 p.m. on the second day of her stay at the hotel plaintiff was entering her room when the transom over the door fell down and struck her on the back of the head, neck and shoulders. In the course of 45 minutes she changed to formal clothes, lay down for a while, and then went to a lower floor where the evening meeting was being held. In talking to some of the girls there she found she had a speech difficulty, so one of them called the house physician, a Dr. Collins. He arrived about 9:00 p.m., at which time plaintiff was participating in the ceremony on the stage. After some delay on this account, plaintiff and Dr. Collins went to plaintiff's room where he examined her for about 25 minutes. His findings were negative except that she was speaking in a very low voice and she had a small bump on the back of her head. He testified that "the bump was a contusion. You couldn't call it a concussion." He prescribed empirin and codeine for headache and suggested that X-rays be taken.
Plaintiff did not have X-rays taken but returned to the stage for the rest of the ceremony, after which she and her husband walked two blocks to the Sherman House where drinks and refreshments were served. At about 11:00 p.m. they started to return to the Morrison but plaintiff found that her legs were not functioning well, so they took a cab. Plaintiff is 5' 3" tall and "for quite a long time" had weighed in the upper 200s.
Reaching the Morrison at about 11:30 p.m. plaintiff went to their room with her husband's assistance. Dr. Collins was called again and he came to the room around midnight. He again advised X-rays and recommended that plaintiff go to the nearest hospital (Henrotin) for which he would make telephone arrangements. Plaintiff and her husband went to Henrotin Hospital where, after a considerable wait at the emergency room, plaintiff found no arrangements had been made for her. The nurse taking her case history commented that they "had a lot of these drunk cases." Plaintiff became so incensed at this remark that she left, because she had had nothing to drink. She and her husband arrived home in Franklin Park at 3:00 a.m. They called the Elmwood Park Medical Center in the expectation that there would be a doctor there at that hour. They talked to a Dr. Mansour. According to plaintiff, he visited her at her home the next morning, and on his advice she entered the Walther Memorial Hospital that day (September 28) and stayed for 14 days under Dr. Mansour's care. She then concluded that he was not doing anything for her but giving her tranquilizers which were not helping her condition (pain in the neck and shoulders; difficulty in speaking and in moving her legs), so she left the hospital and went home. Dr. Mansour sent a bill which was never paid.
Parenthetically, Dr. Mansour appeared as a witness for plaintiff. After refreshing his recollection by looking at the hospital records, he testified that he had seen plaintiff for the first time on September 30, 1957 (not September 28); that she had then entered the hospital and stayed there under his care for eight days (not fourteen).
When plaintiff left Walther Memorial Hospital in October, 1957, on discharge by Dr. Mansour, she made arrangements to enter the Cook County Hospital, but she did not go there. Instead, her husband called the telephone company operator and asked to be referred to a "nerve doctor." He was given the name of Dr. Albert Olson, a chiropractor. As related by plaintiff, Dr. Olson gave her manipulation treatments daily for four months and "maybe three times a week" thereafter until August 7, 1960, when plaintiff "passed out" from a "heart attack" and Dr. Olson called in Dr. Frank Hoffman, also a chiropractor. Dr. Olson then "dropped out" and Dr. Hoffman took over the case. Dr. Olson is no longer practicing, his whereabouts are unknown to plaintiff, and he did not testify. Plaintiff never received a bill from Dr. Olson, but she figured she owed him $10 a visit.
Dr. Hoffman continued with daily chiropractic manipulation treatments for about two weeks, after which plaintiff felt better, and Dr. Hoffman was subsequently called only when she had pain. These visits occurred more than 130 times during the ensuing four months, often twice or three times in a single day. Dr. Hoffman's treatments, at $10 per visit, continued down to the time of trial, though specific information as to many of them was unavailable because some of his records had been destroyed by a fire in 1963. Plaintiff testified that Dr. Hoffman had been giving her tranquilizers and sleeping pills because of the pain. Dr. Hoffman said, however, that at no time had he prescribed any drugs for her only vitamins and food supplements. He also testified that he had given her a bulk formula and special diets for overweight. Plaintiff denied that he had instructed her as to loss of weight.
Returning to plaintiff's own testimony, we find negligible evidence of her good health prior to the accident in question. *fn1 If damages are to be supported, her physical and emotional condition prior to the accident must, of course, be compared favorably to her postaccident condition. In more than 100 pages of plaintiff's testimony all we find on this score is: that for about four years prior to this accident she had been active with her husband in affairs of the River Grove Moose Lodge; that she had attended meetings weekly and ritual practice monthly; that she and her husband went out visiting; that she had done all the housework; that she had not had any pain in the neck, head or shoulders prior to September 28, 1957; that she had "felt good."
Alma Strain, reception chairman for the Women's Moose Convention in 1957, testified on behalf of plaintiff that she had seen plaintiff at the opening of the Moose rituals in the afternoon of September 28 and that "she was perfectly all right at that time." Mrs. Strain had seen plaintiff only once before in her life.
Conspicuous by its absence is any substantial evidence to support plaintiff's claim to good health prior to the occasion at the hotel. There was no testimony from any of the ladies who had been active with her in Moose affairs; nor from friends or neighbors in the community where she lived; nor from any of the many doctors who had cared for her prior to this accident, except Dr. Camero (a defense witness) whose testimony, set forth below, indicates that he found her condition in 1954 to be not greatly different from that existing at the time of the trial. Most significant, perhaps, is the lack of corroborative evidence concerning plaintiff's claimed ability to tend to all the household chores and care for her family prior to the accident. Her children (who were living with plaintiff in her home at the time of the trial), did not testify in support of this claim. Nor did plaintiff call her husband to testify on this score, nor as an occurrence witness (which he was) despite his presence in court throughout the trial. *fn2 In fact, he was a coplaintiff in the suit until he was dismissed on his own motion during the presentation of plaintiff's case.
Plaintiff also testified that she had been in one other accident, involving an automobile, in about 1946 or 1947, and that she had then sustained no injury but merely a bump on the stomach. She said that on that occasion she had gone to the hospital, but only for a checkup, and had not stayed overnight. An Elmhurst Hospital record for September 1954, however, indicated that in giving her medical history at that time plaintiff had related a hospital stay of ten days as a result of an automobile accident six years before. This latter evidence was introduced by defendant through Dr. Ciriaco Camero, who had attended plaintiff in the Elmhurst Hospital in 1954, she having gone there because of itching which had developed in the course of weight-reducing treatments. Dr. Camero, who was not a dermatologist, testified that "at the hospital all the tests were taken that are normally taken and all the tests were negative." All symptoms were also negative except obesity (268 pounds). His diagnosis was "psycho-physiological nervous system reaction." He said that the "itchiness was caused by the nervous system rather than some organic disease," and that "you might say she had a case of nerves."
Plaintiff testified that when hospitalized in Cook County Hospital for childbirth in 1942, she had left the hospital against the advice of her physician (because, she said, her husband was not permitted to visit her there). When in the Mother Cabrini Hospital, again for childbirth, during Easter week of 1944, she again left against her doctor's advice (because, she said, being a Catholic hospital, they had nothing to eat but fish and she couldn't stand the smell). In 1945 she left the Little Company of Mary Hospital against the advice of her doctor. The record also discloses, in the testimony of plaintiff's witness Dr. White, that when she was under his care at Loretto Hospital in 1960 she left the hospital before he wanted her to. Plaintiff denied this.
As to her postaccident condition, plaintiff testified that she was unable to speak above a whisper. She said that her voice "came back slowly at first," and that this difficulty continued until about nine months before trial. For some time after the accident plaintiff also experienced difficulty in moving her legs. Further, she testified that she suffered discomfort and pain in her shoulders, neck and head which continued to the time of trial. For this condition she was still taking tranquilizers, sleeping pills and pain pills. The relief afforded by the manipulations of her chiropractors had, she said, been only temporary and she was too nervous to leave the house; she had been out to a dance only once; her sons had gone away to military school for a while; her husband had done the housework; about all she had done was lie on the couch and watch television.
In August of 1960, when plaintiff had lost consciousness and Dr. Olson had brought Dr. Hoffman into the case, the family doctor, Dr. Gregory White, a licensed M.D. physician and surgeon, was also called in, though the record is not clear as to the date. *fn3 He caused her to be hospitalized in Loretto Hospital for X-rays and other tests. He did so because she was paler than usual and had suffered a weight loss of some 30 pounds. He was apprehensive that the cause of these conditions might be some serious organic disease. She was given an electrocardiogram, X-rays of the chest, stomach and colon, Kahn test, blood count and urinalysis. It is significant to note that no X-rays were taken of her neck or spine, to the best of Dr. White's recollection, yet plaintiff testified that she had gone to the hospital at that time "in connection with being treated for the injury involved in this case."
Dr. White said that he had first seen plaintiff in late 1958 or early 1959. (From the whole record it seems more likely that it was in late 1960. In any event, it was more than a year after the accident in question.) Her complaints related to him were pain in the head and neck, loss of voice, shortness of breath, weakness and fatigue, "and she traced this back to an injury which had taken place some time previously." On examination he found her to be obese and mildly anemic. Other physical findings were negative so far as major pathology was concerned. "There was equivocal tenderness in the muscles of the neck and upper back." He prescribed medication for relief of pain and instructed her in the use of a neck traction apparatus which she had already been using for some time.
In the course of the next five years, to a time three weeks before the trial, Dr. White saw plaintiff about a dozen times. He testified that he gave her "a number of prescriptions for medication to relieve pain, to help her sleep. There were some tranquilizers prescribed and ...