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Johnston v. Basic

OCTOBER 10, 1973.

JAMES G. JOHNSTON, PLAINTIFF-APPELLEE,

v.

JOSEPH BASIC ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND E. TRAFELET, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 17, 1974.

This is an appeal by the defendants from a judgment on a verdict finding in favor of the plaintiff in an action for damages resulting from an assault and battery committed by defendants. Defendants raise the following issues:

(1) Whether the court erred in failing to grant a directed verdict for defendants or whether it further erred in not granting a judgment notwithstanding the verdict in favor of plaintiff;

(2) Whether the court erred in its instructions to the jury; and

(3) Whether the court erred in failing to grant a motion for new trial based on the excessiveness of the damages awarded.

The facts are as follows:

On November 23, 1967, at approximately 9:45 P.M., plaintiff, James G. Johnston, was a passenger in a vehicle driven by a friend, Edward Tracey. At the time Tracey's vehicle was involved in a minor collision with a vehicle driven by defendant Joseph Basic. Defendant Edward A. Sprinkle, along with several other people were passengers in the vehicle driven by defendant Basic. All of the parties involved had been at a hockey game earlier in the evening and the accident occurred just after leaving the game. As a result of the collision, defendant Basic left his car and inspected the damages, exchanging words with the driver of the other vehicle, Tracey, as to whose fault the collision was.

The exact events that followed their exchange were the subject of dispute at trial. Plaintiff testified that he saw defendant Basic attempt to hit Tracey and that Tracey was able to avoid the blows. Plaintiff then got out of the vehicle, walked around the back to the driver's side and told Basic to leave Tracey and himself alone since they weren't "looking for trouble". Plaintiff turned to the left and was struck in the nose by someone other than defendant Basic. Plaintiff stated that he was unsure of the exact events that followed since the blow to his nose left him in a "dazed" condition. He was able to recall being hit around the head and chest some twenty times and from the direction and intensity of the blows he was able to tell that two men were hitting him.

Edward Tracey's testimony generally agreed with that of plaintiff, except he did not see who it was that struck plaintiff, since defendant Basic was between Tracey and plaintiff. He did see plaintiff at the rear of the car between two figures who were throwing punches at him. Tracey testified that defendants left plaintiff in a pool of blood on the street when a woman nearby shouted that she was going to call the police. Defendants left the area in their car and Tracey helped plaintiff into his car and took him to have his injuries treated.

Defendant Basic testified that plaintiff had grabbed or struck at him from the rear and that defendant Sprinkle pulled plaintiff off him. Basic said that plaintiff swung at Sprinkle and then that defendant Sprinkle struck plaintiff. Joseph Basic claimed that he never touched plaintiff. Defendant Sprinkle testified that the blow struck at him by plaintiff merely grazed him and that he then struck plaintiff in the nose. He admitted it was possible that he had struck at plaintiff several other times, but that he could only recall the first blow landing.

At trial, plaintiff introduced evidence of his injuries consisting of his own testimony, the testimony of Edward Tracey as to what he observed as far as cuts and lacerations visible immediately after the beating, and the testimony of a doctor who had examined plaintiff the day after the incident. The doctor described swelling around the eyes and upper lip as well as testimony concerning the exact nature of the injuries to plaintiff's nose. The septum of plaintiff's nose was dislocated to the right and deviated to the left. After some treatment, on plaintiff's last visit to the doctor he complained of difficulty breathing through the left side of his nose. Plaintiff was given a brief examination by the doctor just before trial when the difficulty in breathing was found to still exist. The problem was permanent, in the doctor's opinion, unless corrected by surgery.

The jury found in favor of plaintiff awarding damages of $10,000, from which verdict the defendants appeal to this court.

Defendants' initial contention on appeal is that a directed verdict for defendants should have been granted at the close of plaintiff's case, or that the post-trial motion for judgment notwithstanding the verdict should have been granted. In regard to defendant Joseph Basic, it is argued that there was no evidence of "probative value" to show that Basic ever in fact struck the plaintiff. Further, ...


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