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Manders v. Pulice

NOVEMBER 27, 1968.




Appeal from the Circuit Court of DuPage County, Eighteenth Judicial Circuit; the Hon. WILLIAM J. BAUER, Judge, presiding. Reversed and remanded for a new trial.


Rehearing denied January 9, 1969.

Plaintiffs appeal from judgments entered on jury verdicts in a suit claiming injury to Phyllis Manders and damages to Frank Manders for loss of his wife's consortium arising out of the same collision. Judgment in the amount of $6,000 was entered on the guilty verdict against the defendant Peter Pulice for the wife; judgment of "0" damages was entered on the guilty verdict against the defendant, for the husband. Plaintiffs' motion for a new trial on damages alone, or in the alternative, for a new trial, was denied.

Plaintiffs, in support of their appeal for the same alternative relief here, urge the inadequacy of the damages awarded, the inconsistency of the verdicts, and errors in rulings on instructions.

Defendant counters that the evidence does not support more favorable verdicts; that the trial court correctly ruled, in effect, that the "0" was a "not guilty" verdict and proper under the facts; and that the alleged errors in rulings on instructions have not been preserved for review.

The accident took place on August 25, 1965, when the car in which Mrs. Manders was riding was struck head-on by a car driven by defendant. The car in which plaintiff was traveling was moving slowly while passing the scene of an earlier accident. Defendant's car was estimated by an eyewitness to be traveling at between 30 and 40 miles per hour when it crossed the center line and struck the car in which plaintiff was riding.

In the collision, Phyllis Manders was thrown from the rear seat up against the front windshield, and removed from the scene to a hospital where she remained for six days.

The deposition of her attending physician, Dr. Glen Asselmeier, evidenced that Mrs. Manders had received a compound comminuted fracture of the tibia, and a fracture of the fibula of her right leg; cerebral concussion; severe laceration of the lateral aspect of her nose; a dislocation of her right ankle; and multiple abrasions and bruises. During her stay in the hospital she made no complaint of headaches or radiating pain in her legs. When she was discharged from the hospital, her condition was good. She had a long leg cast on and walked on non-weight bearing crutches. When he next saw her on September 7, 1965, she was still in the long leg cast and had some pain in her leg, but not enough to require medication. She complained of back problems which he associated with her altered gait, and diagnosed as low back strain. When he next saw her on September 21, 1965, his findings were the same except he was not satisfied with the cosmetic aspect of her nose which had been sutured. After a number of further examinations and a resection of the scar on her nose resulting in a "plastic fine line scar," he discharged her after March of 1966. At that time her leg had healed well and was weight bearing. Throughout, she had complained of "vague" dizziness and "vague" back problems, and of pain in her leg. On discharge he advised her to return if she had further complaints, but she did not do so. In his opinion all of her injuries were from the accident.

Dr. Orren D. Baab, an orthopedic surgeon, testified that he examined Phyllis Manders on June 13, 1967. She walked well with a "temporary" limp when she got up from the chair. The scar on her nose was visible but "not cosmetically undesirable." There were small visible scars under the right and left eyebrow, a bony prominence over the right eyebrow, and a thick scar behind her shoulder. He found that the right calf measured 13 1/4 inches, the left calf 14 inches. The right ankle was a little smaller than the left. The right leg was 3/16ths of an inch shorter than the left leg, but this would not produce a limp nor any subsequent disability in the knee or hip. There was "an early arthritis" of the ankle joint, with a limitation of motion in the foot. It was his opinion that if she restricted herself to decreased activity she would experience only some ache, stiffness and discomfort, which she could handle herself with aspirin; but that if she assumed a normal life she would in the future require more definitive care and stronger medication. While both the limitation of motion in the ankle, and the shortening of the right leg were permanent conditions, the difference between circumferences of the calves would improve with exercise.

The medical and hospital expenses were $1,282.37. Mrs. Manders' lost wages for the twenty-nine or thirty weeks she was absent amounted to about $3,300.

The evidence on the claim for loss of consortium as testified to by Frank Manders consisted of the following: Prior to August 25, 1965, Mrs. Manders was in good health and she and her husband did a great deal of dancing, bowling, ice skating and roller skating. She did the housework, cooking, laundry and other chores in taking care of the family. Her mother-in-law stayed with her for the first two weeks following the hospitalization and was paid $75. Thereafter her husband did most of the chores around the house, with assistance from their two daughters, as she was in a wheel chair for most of the time during the months following the accident. Mrs. Manders resumed her full household duties about two months before the trial, in June, 1967.

Following the hospitalization, Phyllis Manders was short-tempered, very irritable and could not remember anything that was told to her. Her gait was still very labored and awkward. She could not "communicate" with her husband after the accident. There was a change in her sleeping habits. At least one night a week Mr. Manders would wake up in the middle of the night and find Mrs. Manders sitting in the front room. Mrs. Manders still limps on occasions. He testified he lost $500 in wages for unreimbursed time he took off from work to take his wife to the Doctors. (Dr. Asselmeier's testimony, however, accounted for ten to eleven visits of which he had made records, while both plaintiffs testified to between twenty and twenty-five visits.)

We first approach the question of the adequacy of the judgment secured by Phyllis Manders. Considered separately from the "0" judgment in the husband's claim, we would not overturn it. We cannot say, from this record, that it is so grossly or palpably inadequate as to be against the manifest weight of the evidence. While her testimony of her suffering and complaints at the trial and the number of her visits to the doctor were of greater magnitude than the Doctors accounted for in their testimony, this raised a question of credibility, peculiarly within the discretion of the jury, in a trial, as here, free from prejudicial trial error on this issue. Borries v. Z. Frank, Inc., 73 Ill. App.2d 128, 136, 219 N.E.2d 737 (1966); Johanneson v. Ring, 82 Ill. App.2d 340, 346-348, 226 N.E.2d 291 (1967); Haleem v. Onate, 71 Ill. App.2d 457, 460-461, 219 N.E.2d 94 (1966).

If we then consider the "0" verdict and judgment on Frank Manders' claim for loss of consortium, apart from the judgment for his wife's injuries, we must conclude from the record that, irrespective of whether it is construed as a "not guilty" finding or as "0" damages, it is against the manifest weight of the evidence. Cases cited by defendant for the rule that where no damages have been proved, there is no requirement that the jury return damages ...

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