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Greenstein v. Nogle

MAY 24, 1972.

LEWIS GREENSTEIN, PLAINTIFF-APPELLANT,

v.

JUANITA

v.

NOGLE, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Champaign County; the Hon. SARAH M. LUMPP, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Plaintiff-Appellant, Lewis Greenstein appeals from the order of the trial court which granted the motion of Defendant-Appellee, Juanita Nogle, to strike and dismiss Plaintiff's Complaint.

On October 29, 1968, Alan H. Greenstein, minor brother of the plaintiff, was riding a motorcycle which belonged to the Plaintiff. Alan was involved in an accident with a car driven by the defendant, Juanita Nogle; he sustained injuries and the motorcycle was damaged.

Thereafter, Alan H. Greenstein, by Orie Greenstein, his father and next friend, brought suit in the Circuit Court of Champaign County. The file mark of the Clerk is illegible but we gather that the Complaint was filed in December, 1968. The docket number assigned to the cause was 68-L-1083. The Complaint in cause 68-L-1083 recited that Alan was operating a motorcycle and contained various allegations of alleged negligent conduct on the part of the driver of the car, Juanita Nogle. The ad damnum was in the amount of $150,000.00, and the Complaint alleged personal injuries, medical expenses, pain and suffering, "and the property of the Plaintiff was greatly and severely damaged." The only item of property specifically mentioned in the Complaint was the motorcycle. Plaintiff's attorney, in cause 68-L-1083, (the same attorney who represents the plaintiff in the case here on review) then filed, in cause 68-L-1083, a pretrial memorandum. In this memorandum, which appears to be a form promulgated by the Court, paragraph 4 directs "In tort cases, plaintiff * * * shall furnish the following information." The information called for is itemization of special damages, and on the pretrial memorandum filed by plaintiff's attorney appears the following so far as relevant to the decision here: (The emphasized language distinguishes plaintiff's attorney's responses from the printed form questions.)

"(b) Names of all attending or examining physicians with their respective bills:

Dr. Russo and other doctors, Christie Clinic, estimated $200.00; Dr. Thomas Kelso, $200.00 to date; Dr. R.F. Heimburger $455.00 to date; Dr. R.E. Lindseth to date, est. $250.00.

(c) Names of hospitals and their bills: Mercy Hospital $216.65; Indiana Medical Center $2727.50 to date.

(f) Out-of-pocket expense: Arrow Ambulance $120.00; Medicines $184.87 to date;

(g) Property damage: Bro. Lewis' motorcycle $850.00; Parents expenses and care $3393.65.

(i) Total liquidated damages: $8347.57 to date."

We excused the filing of abstracts or excerpts of the record. In the copies filed the contents of the Pre-Trial Memorandum are totally illegible. In the original record, following the name of Dr. Heimburger are small, handwritten figures which are illegible. We assumed Dr. Heimburger's bill to be in the sum of $455.00 since that figure, together with the other itemizations, yields the total $8347.57.

We note that the motorcycle was included under the property damage claims in sub-paragraph (g) above, and also in the total liquidated damage claim in sub-paragraph (i) above.

The parties then, over a period of time, negotiated a settlement of the plaintiff's claims in cause 68-L-1083 for the total sum of $33,000.00. The settlement was approved by the Court, the Guardian executed a release dated June 15, 1970, and the cause was dismissed with prejudice.

On January 26, 1971, plaintiff-appellant Lewis Greenstein, the owner of the motorcycle in question, filed a Small Claim Complaint against defendant-appellee, Juanita Nogle, seeking to recover for the damages to the motorcycle. Defendant, appearing by the same attorney who had represented her in cause 68-L-1083, responded with a Motion for Involuntary Dismissal of the Small Claims Complaint under Section 48 of the Civil Practice Act urging that the claim had been released and satisfied of record. Defendant attached to the motion a copy of the Complaint in cause 68-L-1083, a copy of the pretrial memorandum filed by the plaintiff in that cause and a copy of the guardian's release. Plaintiff filed a Motion to Strike defendant's Motion for Involuntary Dismissal on the ground that it was neither verified nor supported by affidavit as required by the statute. Defendant's attorney then filed his personal affidavit in support of the motion. This affidavit stated that the copies of the exhibits attached to the motion were true and correct copies of the originals on file in cause 68-L-1083, ...


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