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Becherer v. Best

AUGUST 10, 1966.




Appeal from the Circuit Court of St. Clair County, Twentieth Judicial Circuit; the Hon. JOSEPH E. FLEMING, Judge, presiding. Judgment for plaintiffs affirmed.


This is an appeal from a verdict for the plaintiffs in an action for personal injuries and loss of consortium because of the alleged negligence of defendant, Charles Best, and the alleged wilful and wanton misconduct of defendant, Inge Smith, in the operation of their automobiles.

Charles Best testified that he was driving his vehicle at an estimated 55-60 miles per hour in a southerly direction on Route 159 about three and one-half miles south of Belleville. He had driven on the road many times before; and he knew that there were farmhouses and driveways on both sides of the road. Upon driving over the crest of a ridge, he first noticed the automobile which Inge Smith was driving in a southerly direction with Johanna Becherer as a passenger. He estimated the speed of the Smith vehicle at 35-45 miles per hour. When he was about 300-400 feet north of the Becherer driveway and 200-300 feet from the Smith vehicle, he pulled into the northbound lane with the intent to pass. He testified that he then sounded his horn. Both Inge Smith and Irvin Becherer, who was lying in the trailer located on his property, testified that they did not hear the sound of a horn. When Best was 50-75 feet from the Smith vehicle, although he did not see a left turn signal or brake lights, it began to angle left, toward the Becherer driveway, at a 45-degree angle. He immediately applied his brakes and left two skid marks, one of which was 130 feet and the other 53 feet. The right front of his vehicle struck the left rear of the Smith vehicle, causing it to drop down an embankment about 80 feet from the point of impact. Best's vehicle came to a rest about 30 feet from the impact.

Mrs. Smith testified that she had turned on her directional signal when she was 500-600 feet from the driveway, although she admitted that she had stated in a deposition that she turned on the signal when she was 50-100 feet from the driveway. She also testified that she had slowed her vehicle to about 15 miles per hour in order to make the turn into the Becherer driveway. She also stated that at the time she turned on the blinker light, she did not observe headlights to her rear. When she slowed down to make the left turn, she saw the headlights from the rear. She had already started to turn when she saw the lights in the rearview mirror, but she did not observe the headlights moving from the southbound lane to the northbound lane. In fact, when she first saw the headlights, she didn't know what lane of traffic they were in.

There was also testimony by the tow truck driver that he took the Smith vehicle to his garage on the night of the accident and locked it in the garage. The next morning he checked the turn signals, and the left turn signal was on. When he reconnected the battery, the bulb flashed for a left turn.

As a result of the collision, Mrs. Becherer suffered severe injuries. Dr. Nash, a neurosurgeon who first examined and treated her on the evening of the collision, testified that she had sustained brain damage of a generalized nature. He found deficits of intellectual powers, as well as behavior, which he believed to be permanent. He stated that the injuries sustained could probably be manifested in a showing of a lack of interest in housework, children, and husband. He also testified that, with proper care, she could live out her normal life expectancy, estimated to be 35.78 years. Mr. Becherer, Mrs. Smith, Maria Link, a friend of Mrs. Becherer, and Marcella Stauder, the sister of Irvin Becherer, testified that Mrs. Becherer had changed very much after the collision. Before the collision she was a very active person, who had great patience with her children, who did a lot of washing, ironing, cooking, canning, and cleaning, and who was always neat and clean. Now, after the collision, she limped and was very sluggish, she tired very easily, she had no patience with the children and often scolded and hollered at them, and she did not care how she looked, and would not take care of the house.

Dr. Bergmann, a psychiatrist, and consultant at Alton State Hospital, testified that he first examined Mrs. Becherer a year after the accident at the request of the resident physician. He stated that the injury is of a permanent nature and that she will probably require either custodial care or would need to remain in a very protected environment for the rest of her life. In his capacity he advised treatment. He relied partially upon a history obtained by the resident physician. He next examined her three years later at the request of her attorney. He admitted that his examination was for the purpose of possibly testifying; and he added that he had obtained background information from people other than Mrs. Becherer and that he had based part of his testimony on her subjective statements of pain and symptoms.

In their complaint, the plaintiffs alleged that defendant Best was guilty of negligence in that he operated his vehicle at an excessive speed under the prevailing conditions; he failed to keep a proper lookout; he followed a preceding car more closely than was reasonable and prudent; he failed to give a signal with his horn; he failed to stop his vehicle; and he drove his vehicle in such a fashion as to cause a collision. They also alleged that defendant Smith was guilty of wilful and wanton misconduct in that she turned her vehicle from a direct course upon the highway when such movement could not have been made with safety; she failed to give a signal of her intention to turn left; and she decreased the speed of her vehicle.

The jury returned a verdict in favor of Mrs. Becherer for $50,000 for her injuries and in favor of Mr. Becherer for $10,000 for loss of consortium, and they answered yes to a special interrogatory which asked whether the defendant Smith was guilty of wilful and wanton misconduct which proximately contributed to cause the occurrence in question. Both defendants filed post-trial motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. From the denial of these motions, both defendants appealed.

Best first argues that the verdict of the jury was the result of passion and prejudice induced by the absence of Mrs. Becherer during most of the trial, by prejudicial argument to the jury, and by the conduct and testimony of witnesses while testifying. No objection whatever was made at any time during the trial to the absence of Mrs. Becherer. Hence this objection was waived. Marshall v. John Grosse Clothing Co., 184 Ill. 421, 56 NE 807; Forest Preserve Dist. of Cook County v. Lehmann Estate, Inc., 388 Ill. 416, 58 N.E.2d 538. Similarly, there were no allegations of error in the post-trial motion concerning prejudicial argument or the conduct of witnesses. Hence these objections were also waived. County Board of School Trustees of Macon County v. Batchelder, 7 Ill.2d 178, 130 N.E.2d 175; Illinois Cent. R. Co. v. Johnson, 191 Ill. 594, 61 N.E. 334; Perez v. Baltimore & Ohio R. Co., 24 Ill. App.2d 204, 164 N.E.2d 209.

Both defendants argue that the court erred in refusing to strike the testimony of Dr. Bergmann. It is argued that he was an examining physician only and therefore he could not testify concerning the subjective complaints made by Mrs. Becherer at the examination requested by her attorney.

In Quirk v. Schramm, 333 Ill. App. 293, 77 N.E.2d 417, the evidence showed that a physician had treated the plaintiff for four or five weeks commencing on the evening of the occurrence and that a year and seven months had elapsed from the last time he had treated her to the time when he examined her for the purpose of testifying. The court found him an attending physician.

In Powers v. Browning, 2 Ill. App.2d 479, 119 N.E.2d 795, the evidence showed that a physician had given the plaintiff a neurological examination in October, 1951, five months after an accident in which he was injured. He again saw the patient in November, 1951, and conducted another examination, resulting in the same findings as before. The physician again examined the plaintiff on November 14, 1952, finding some improvement. The complaint in that case had been filed on February 16, 1952, and the trial began on November 20, 1952. The court found him a treating physician.

Since Dr. Bergmann had examined Mrs. Becherer for treatment, he was a treating physician and his testimony concerning her subjective symptoms was admissible. However, even if he were considered only an examining physician and his testimony inadmissible, the error would not have been reversible. The admission of incompetent testimony by a physician in a personal injury case does not justify a reversal where his testimony is merely corroborative of matters already proven by other evidence. Greinke v. Chicago City Ry. Co., 234 Ill. 564, 85 NE 327. In the case at bar, everything to which Dr. Bergmann testified was corroborative and cumulative of the testimony of Dr. Nash, Anne Faist, a nurse assigned to care for Mrs. Becherer, Mr. Becherer, Marcella Stauder, Maria Link, and Inge Smith. Therefore, if error had been committed, it would have been harmless.

Defendants also argue that the testimony of Dr. Bergmann should not have been admitted because he based his conclusions and diagnosis upon information given to him by persons other than the plaintiff. During his first examination, he relied upon a history taken by the resident physician. In the second ...

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