Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Demeo v. Manville

OPINION FILED FEBRUARY 20, 1979.

SARA DEMEO ET AL., PLAINTIFFS-APPELLEES,

v.

RICK MANVILLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. ROBERT A. NOLAN, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

This is a small-claims action involving the death of plaintiffs' show dog. On September 5, 1976, defendant Manville visited plaintiffs and pulled his car into their driveway. He went inside the house and notified plaintiff Demeo that one of her two dogs tied outside was injured and bleeding. Defendant alleged that the dogs were fighting. He assisted Demeo by taking her and the injured dog to a veterinarian. The vet examined the dog and took X rays; he concluded from his examination that the dog should be put to sleep, which was done.

Plaintiffs filed in small-claims court to recover the value of the dog, alleging that defendant ran over the dog with his car. Trial was set for November 9, 1976; the defendant and plaintiff Demeo were present that day, but the trial court continued the cause for one week. Trial resumed on November 16 and produced the following evidence: the vet opined that the cause of death was from a car accident or could have been from a clubbing; plaintiff Baron saw blood and hair in the driveway for a length of one to two feet; the dog had a broken back and severe abrasions on its stomach; there was also blood on the grass near the tree which the dog was tied to; and defendant denied running over the dog, a fact also testified to by defendant's six-year-old nephew who was in the car at the time. The trial court held for plaintiffs and stated that it based its decision largely on the credibility of the witnesses; plaintiffs were awarded $565 and costs although this was later reduced to $500 and costs.

• 1 We note that the trial court made a determination of liability in this cause; since the question of liability has not been preserved in the defendant's post-trial motion, we do not consider that this issue is before the court and therefore it is not discussed in this opinion.

• 2 Defendant first contends that the trial court abused its discretion by continuing the date of trial and that plaintiffs failed to provide affidavits or a statement of good cause in support of the continuance. Supreme Court Rule 286 (Ill. Rev. Stat. 1975, ch. 110A, par. 286) provides that trial will be on the day set for appearance unless otherwise ordered; Supreme Court Rule 231(e) (Ill. Rev. Stat. 1975, ch. 110A, par. 231(e)) allows the court to continue a cause on its own motion; and the record does not seem to show that the continuance was other than on the court's motion. Since defendant has neither shown nor alleged prejudice from the delay of one week, we find no reversible error here.

• 3 Defendant next contends that it was error to allow the vet to testify about the X rays without producing them and laying a foundation for their accuracy. Under the circumstances of this case there are factors which must be considered which, when weighed as a whole, provide a basis for both the reliability of the testimony and for the court's decision to allow the testimony to be given: first, this is a small claims action; second, plaintiffs were without counsel in the trial court; third, the vet relied on the X rays in his treatment; and fourth, the vet's opinion as to the cause of the injury was based on factors in addition to those which could be determined from an examination of the X ray. Although the rules of evidence apply to small claims cases, they are not applied with the strictness required in non-small-claims cases. (Maxcy v. Frontier Ford, Inc. (1975), 29 Ill. App.3d 867, 331 N.E.2d 858.) In our view, considering all of these factors as a whole, we believe that defendant was not prejudiced by admission of the testimony about the X rays.

• 4, 5 Next, defendant urges that plaintiff was not qualified to testify as to the dog's value. In a suit to recover for the killing of a dog, the trier of fact should be allowed to consider the dog's value based on evidence of its qualities as well as commercial value and loss of services. (Spray v. Ammerman (1872), 66 Ill. 309.) Plaintiff here testified that the dog cost $200 as a pup, was one year old at death, appeared in four shows and won first prize in each, and that the sire was an international grand champion. This is evidence showing a familiarity with the dog's qualities and commercial value and we accordingly view it as competent testimony.

• 6 Defendant next contends that the trial court erred in the extent and manner by which it examined witnesses. Almost all questioning as part of plaintiffs' case and cross-examination was done by the court, and defendant urges that the court therefore assumed the role of an advocate. Clearly, the trial court has the right to question witnesses within its discretion and based upon the circumstances of each case, especially in a bench trial. (People v. Palmer (1963), 27 Ill.2d 311, 189 N.E.2d 265.) Considering the nature of the case, that plaintiffs had no attorney and that defendant did, and on examining the record and transcripts, it appears that the court did not become an advocate and that it acted within its discretion.

• 7 Defendant also argues that the judgment is against the manifest weight of the evidence as to ownership of the dog and causation of death. This position is based on the fact that defendant presented direct testimony while plaintiffs' case is based on circumstantial evidence. We note that the trial court's decision was based largely on the credibility of the witnesses; that there was a basis in the evidence for its decision, and that the opposite conclusion is not clearly evident. The judgment is accordingly not contrary to the manifest weight of the evidence.

Defendant next contends that it was error to allow the vet to testify as to the cause of the injury, characterizing the testimony as reconstruction testimony. Examination of the transcript shows that this was not the nature of the testimony. There was no effort to provide a reconstruction of the accident; the vet testified that based on his experience in treating injured dogs, this injury appeared to be caused by an automobile accident. The vet's experience in treating injuries provides an adequate basis for his opinion here.

• 8 Finally, defendant urges that it was error for the court to increase the damages requested. Plaintiffs requested $500 and the court initially awarded $565, the extra amount apparently to compensate for the vet's service in putting the dog to sleep. The increase was brought to the trial court's attention and it indicated that only the $500 amount would be awarded. The record includes an order that defendant pay a judgment balance of $500 plus costs of $37 in installments of $20 per month. This issue is therefore moot.

The judgment of the circuit court of Du Page County is accordingly affirmed.

Affirmed.

SEIDENFELD, J., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.