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Bernardoni v. Johnson

MAY 29, 1975.

DELORES BERNARDONI, PLAINTIFF-APPELLANT,

v.

ERNEST M. JOHNSON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. LEONARD HOFFMAN, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Plaintiff Delores Bernardoni petitioned this court for leave to appeal an order of La Salle County Circuit Court which granted defendant Ernest M. Johnson a new trial on the issue of damages only in an action resulting from an automobile collision. The jury found against defendant and returned a verdict of $45,000. The trial court, pursuant to motion, ordered a new trial on the issue of damages only.

After briefs were filed on the petition for leave to appeal as well as answer thereto, the parties requested that we consider such briefs not only on the advisability of granting the petition but also on the merits of the appeal itself, if the petition were granted. We have granted the petition for leave to appeal, and now proceed to a consideration of the issues raised in the petition and answer thereto.

From the record it is apparent that about 2 P.M. on September 10, 1972, plaintiff came to a stop in her motor vehicle at the intersection of U.S. Route 51 and Shooting Park Road in Peru, Illinois, in obedience to a stop sign at such intersection. Defendant was unable to stop, and ran into the rear of plaintiff's automobile and knocked it forward about 15 feet. Plaintiff, age 23, was the mother of two children and was pregnant at the time of the accident. She complained of back pains to the investigating officer and was sent to a hospital. Her physician, Dr. Lucas, examined her back and found some tenderness, but released her the following day.

Plaintiff testified that she began experiencing a severe burning pain in her lower back immediately following the accident and that it grew progressively worse. She said that she mentioned it to Dr. Lucas on subsequent occasions, although she never made a visit for that specific purpose. Dr. Lucas had no record of such complaints nor did he recall any. As far as the record discloses there was no adverse effect on the pregnancy.

In February 1973, 5 months after the accident, plaintiff visited Dr. Doyle at the suggestion of her attorney, Dr. Doyle also examined her on two occasions about a year later, just prior to the trial. The doctor testified as to plaintiff's inability to move her legs in a normal full range of motion without pain; to tenderness in the lower back area; to muscle weakness and difficulty in moving around. He stated, however, that her reflexes were normal and that she could make many movements without experiencing pain. Dr. Doyle was of the opinion that the problems he observed stemmed from the accident and were the result of what he diagnosed as an episacroiliac — a fatty tumor in the lower back. The doctor stated that major surgery would correct the problems by excising the tumor. He pointed out, however, that the diagnosis might be inaccurate and that the problem could be incurable. Without surgery, she stated, the condition of the plaintiff was of a permanent nature.

Plaintiff testified also that she injured her back in an accident in 1966, when she was 15 years old and that she was involved in a minor car accident in 1968. She said, however, that she worked during and after these periods of time as a waitress and as a nurse's aide, and was very active in athletic programs, all without incident. She also had two uneventful pregnancies during those years.

Plaintiff also testified that after the accident in question, the back pains have impaired her mobility and interfered with her ability to do her housework and perform her job as a waitress. She stated she had sensations of pain when she lay down and, also, when she was sitting or standing for long periods of time. She also felt pain when she lifted things. She said the pain involved while she was lying down interfered with sexual relations with her husband. She also testified to feeling pain while undertaking such activities as bowling, which she did previously without any problem. The medical bills for plaintiff were shown to be only $124. Damage to the automobile is not shown specifically of record but apparently was not extensive. There was no evidence presented as to any possible lost wages.

After the jury had returned a verdict of $45,000, defendant submitted a post-trial motion which, in the alternative, requested a new trial on the issue of damages only. The court granted that request and stated:

"Upon consideration of the trial evidence heard, the arguments of counsel, and upon the careful study of the transcript of Dr. Bernard Doyle's testimony, it is the finding of the Court that the verdict is not supported by the evidence, is grossly excessive, shocks the conscience of the Court, and far exceeds a fair and reasonable compensation to the plaintiff for her injuries."

The issue before us concerns specifically, whether the court properly exercised its discretion in granting defendant a new trial on the question of damages. Plaintiff argues that the assessment of damages is a jury function and should not be set aside where there is a basis in the record for the jury's verdict. Defendant, however, contends that the trial court's new trial order should not be reversed unless there is an abuse of discretion. Defendant also points out that much deference should be given to the decision of the trial court in granting a new trial, provided there is a basis in the record for the court's decision, and that, if so, it should not be reversed on appeal.

• 1, 2 Normally the question of damages is primarily one for the jury. (Flynn v. Vancil (1968), 41 Ill.2d 236, 240, 242 N.E.2d 237.) The function of the jury is to weigh the conflicts and discrepancies in the evidence; to determine, if the testimony of witnesses is credible, in whole or in part; and to draw the ultimate conclusions of fact (Dunlavey v. Patti (3rd Dist. 1967), 79 Ill. App.2d 442, 446, 223 N.E.2d 858). As stated in the Dunlavey case:

"The trial court cannot substitute its inferences and conclusions of fact for those drawn by the jury if those drawn by the jury find reasonable support in the evidence * * *." (79 Ill. App.2d 442, 446.)

Where the damages assessed by a jury, however, are deemed to be so unreasonable as to indicate passion or prejudice, the trial court, in its discretion, may order a new trial. As stated in Klatt v. Commonwealth ...


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