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Morris v. Stewart

MARCH 2, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. HARRY H. PORTER, Judge, presiding.


This case involves a cause of action for injuries received by the plaintiff in an automobile accident. Plaintiff alleged that the accident was caused by the negligent operation of the defendants' vehicle and instituted suit against the corporate owner of the vehicle and its employee, the driver thereof. A verdict was entered in favor of the plaintiff for $75,000 and judgment entered thereon. After denial of a motion for a new trial, the defendants appeal.

On appeal the issues raised by the defendants are as follows. First, the trial court committed reversible error when it overruled defendants' objection to a hypothetical question posed by plaintiff to plaintiff's expert neurosurgeon. This question did not include what defendants allege was the undisputed fact that plaintiff suffered post-accident falls and head injuries prior to his suffering alleged epileptic blackouts and seizures. Second, defendants contend the trial court erred when it required them to state their hypothetical question, posed on cross-examination to the same expert neurosurgeon, in terms of alternative fact situations. This action, argue defendants, gave the plaintiff an unfair advantage in that it resulted in their version of the question being once again presented and answered by the witness before the jury. Further, defendants say that this action unduly restricted defendants' rights of cross-examination.

We affirm.

The testimony of the plaintiff can be summarized as follows. On January 13, 1964, plaintiff's car, which he was driving, was struck by a truck owned by the corporate defendant and driven by the individual defendant. The plaintiff's car went out of control and crashed into a street-light. The impact of the collision caused the plaintiff to strike his head against the roof of his car. Plaintiff was hospitalized that evening under the care of one Dr. Gill and remained in the hospital two or three days. A day or so after leaving, he returned to the same hospital for approximately one week, again under the care of Dr. Gill. Plaintiff said he visited Dr. Gill two or three times a week for the remainder of 1964. As a result of the accident plaintiff suffered, among other ill effects, severe headaches, back trouble, vision difficulty, and said that he had become an epileptic. In relation to his epilepsy plaintiff stated that he had begun to have epileptic seizures about May, 1964, which continued to the present. Plaintiff returned to his job as a truck driver in August, 1964, and worked until March, 1965, when he suffered several seizures at the job and was subsequently discharged by his employer. At the time of trial plaintiff was attending school under a rehabilitation scholarship.

On cross-examination plaintiff reaffirmed that his seizures began in May, 1964. Further, plaintiff said he sustained no head injury from any fall at work and that he never told Dr. Gill he had sustained a head injury in a fall at work but did tell Dr. Gill that he had fallen at work. Plaintiff said he had not had severe headaches prior to the accident.

The testimony of plaintiff's former employment supervisor was that plaintiff had, at the time of the accident, been employed as a truck driver since August, 1961, and was a good employee. The witness said plaintiff was off work from January, 1964, until August, 1964. After his return the plaintiff worked until March, 1965. The plaintiff suffered two falls at work which caused his employers to suspect plaintiff's physical well-being, and he was required to take a physical examination. Plaintiff did not pass this examination, and ultimately, after several doctors examined him, the plaintiff's employment was terminated.

On cross-examination the employment supervisor testified that the plaintiff's falls occurred in the period between August, 1964, and March, 1965. One fall occurred in the trailer of a truck, and plaintiff hurt his hand. The second fall occurred in the truck yard, and the witness did not state any specific injury resulting therefrom.

Dr. Gill, the plaintiff's treating physician from the time of the auto accident, testified that he had an independent recollection of most of the events involved except for some of the dates and asked to use his records to refresh his recollection. He said he first treated the plaintiff on January 13, 1964, at St. Francis Hospital in Blue Island, Illinois. Among other findings Gill stated he found plaintiff to have pain on motion of the neck or cervical spine and moderate to severe headache and that his diagnosis was a whiplash injury to the cervical spine, cerebral concussion, etc. Plaintiff was only hospitalized for one day initially and reentered the hospital within several days and stayed for six days. Gill continued to see the plaintiff for the remainder of 1964, and plaintiff complained of headaches and back pains. Gill said that several months after the accident plaintiff began having blackouts and seizures or convulsions with stiffening of the arms and legs and loss of memory. Gill believed these seizures began in March, 1964. Gill said plaintiff had many of these seizures, but that he did not have records theron since plaintiff was very often treated as an out-patient by the emergency room and then released without seeing Gill. Gill saw plaintiff continually from the time of the accident until the present, sometimes twice a week and sometimes once a month. Plaintiff was examined by a Dr. Tobias, a neurosurgeon, during a period of admittance at St. Francis in May, 1965. Gill said that the plaintiff's chief remaining problems from the accident were the headaches, blackouts and seizures. Gill testified that in his opinion there was a causal connection between the accident and the plaintiff's present condition of seizures and that such condition was probably permanent.

On cross-examination Dr. Gill testified that although plaintiff complained of headaches on January 13, 1964, the summary sheet of his hospital admission on that day contained a patient history taken by Dr. Gill, and this history contained no mention of headaches. Gill further stated that plaintiff was hospitalized in March, 1964, allegedly for blackouts and seizures but that the diagnosis on the discharge sheet for that hospitalization contained no reference to seizures. Gill said that although they didn't specifically hospitalize plaintiff for seizures, they were still evaluating these complaints. A patient history taken from plaintiff by a resident doctor during the March, 1964, hospitalization indicated a history of headaches going back several years prior to the accident. Gill stated that plaintiff's seizures began in March, 1964, as indicated by his records but that the records themselves used terminology of vision focusing difficulty, nervousness, severe headaches, and no specific terminology of seizure was indicated. Gill said he thought plaintiff's first encephalogram was in March, 1964, but admitted the first record of plaintiff receiving an encephalogram was March, 1965. The first note Gill had in his office records of plaintiff having seizures was January, 1965, wherein plaintiff complained of memory loss, confusion and loss of contact, although Gill said his records did not actually contain the term "loss of contact." Plaintiff was hospitalized in May, 1965, at which time Dr. Tobias examined him. A patient history taken by Dr. Gill at the May, 1965, hospitalization was as follows:

"A twenty-five year old white male with history of automobile accident and head injury one year ago; did fairly well until three months ago when fell at work again; since then has had episodes of blackout spells and seizures; has been on Dilantin and phenobarbital; this P.M. evidently had a seizure and fell down a flight of stairs."

Gill stated that when plaintiff talked to him in May, 1965, he told Gill that he had fallen and received a head injury. Gill maintained that plaintiff had seizures prior to 1965 even though he had no notes thereon, and such symptoms as vision change and loss of memory were part of a whole picture. Gill stated that a visual disturbance is related to a blackout or seizure in that it is a different focus of irritability but can arise out of the same pathology. He stated that the later falls could have aggravated a pre-existing pathology but didn't feel they were of such a severity to give him the amount of symptomatology plaintiff had. Although he had no records indicating convulsions prior to 1965, Gill insisted plaintiff did have blackouts and visual disturbances in 1964. He said he felt certain there was a history of seizures prior to plaintiff's hospitalization in May, 1965. Plaintiff's encephalogram in March, 1965, was within normal limits.

Dr. Tobias, a neurosurgeon, was called by plaintiff as an expert witness in the field of neurosurgery. He testified that he examined plaintiff in May, 1965. He was asked the following hypothetical question by the plaintiff:

"Q. * * * Assuming a man twenty-five years in good health had been employed for, approximately, four years as a truck driver, who on January 13th, 1964, was involved in an accident where he was driving an automobile, the automobile left the road and struck a light pole as a consequence of which he struck his head against the side of the window of the car, was hurled to the floor, subsequently left the car, was violently ill, was hospitalized the following day for two days complaining of severe headaches, neck and back injuries, left the hospital, returned, and stayed six days with the same injury, subsequently returned to work, still sustaining severe headaches that he ultimately recovered from his neck and back injuries, continued to have severe headaches, and, then, began to have black-outs seizures after the accident, is to this day having black-outs seizures, has had, approximately, thirty-five to forty seizures in this period of time, that he never had these symptoms prior to this accident, Doctor, assuming these facts to be true, do you have an opinion based on a reasonable degree of medical certainty from a medical and surgical standpoint as to whether or not there might be a causal connection between the accident I have described and the condition of ill-being related in the future as set forth in the question?"

Counsel for defendants objected to the question on the ground that it did not include reference to the alleged head injury sustained in the fall some three months prior to May, 1965. After a discussion in the trial judge's chambers, the objection was overruled, and Dr. Tobias was permitted to express his opinion which was to the effect that, under the facts of the hypothetical, there ...

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