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Terracina v. Castelli

OPINION FILED DECEMBER 28, 1979.

RONALD TERRACINA, PLAINTIFF-APPELLANT,

v.

JO ANN CASTELLI, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM B. KANE, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 26, 1980.

A jury awarded plaintiff damages of $2,000 in a personal injury action arising out of a collision of automobiles. He appeals from the judgment entered on the verdict contending that (1) the court erred (a) in permitting defendant to present evidence as to a subsequent accident of plaintiff and (b) in striking certain testimony of Dr. Moody, a plaintiff witness; (2) defense counsel's closing argument prejudiced plaintiff; and (3) the damages were inadequate as a matter of law.

Plaintiff testified that the collision, in which his car was struck in the rear, occurred in July 1973 and, as a result, he experienced neck pain and headaches and later developed severe, intermittent pain in his lower back; that he received medical treatment from a Dr. Ostroff and an orthopedic surgeon (Dr. West), who treated him for several months including five days of hospitalization; that he had a $750 loss of earnings because of inability to work for three weeks; and that he incurred $815.55 in medical expenses. He also testified that in January 1976 he fractured his elbow, wrist and ankle as a result of a 14-foot fall from a scaffold while working in California, but that he did not injure his back at that time.

Dr. Robert Moody, a neurosurgeon called by plaintiff, testified that he examined plaintiff just prior to trial and diagnosed his condition as "chronic full back strain and possible protruded disc at the L-5 S-1 junction, pressing on the S-1 nerve root." In answer to hypothetical questions, he gave opinions that plaintiff's back condition was permanent and might or could have been caused by the automobile collision, that he had a "possible protruded disc" and that future surgery was possible. He testified, however, that he had no opinion as to whether the 14-foot fall in the California accident might or could have caused the condition of plaintiff's back because he "didn't see him after the second accident and there is no way for me to make an accurate opinion about that." On cross-examination, he answered that it was more probable than not that the 14-foot fall would have an effect on plaintiff's spinal column, with the severity depending on how the person landed. On motion of plaintiff at the conclusion of Dr. Moody's testimony, the court struck his testimony that future surgery was "possible" and that plaintiff had a "possible protruded disc."

Dr. Robert Stone, an orthopedic surgeon called by defendant, was given a series of hypothetical questions which, among other things, included a reference to plaintiff's 14-foot fall from the scaffold in California. He gave opinions that there were no findings given him to indicate a cause of plaintiff's condition at time of trial, as the findings given were based solely on subjective complaints; and that plaintiff was more likely to have sustained an injury to his spinal column from such a 14-foot fall than from the automobile collision described, in which it was stated that there was no contact between plaintiff's body and any part of the car.

Prior to trial, plaintiff made an oral motion in limine to exclude testimony relative to the 14-foot fall. The motion was denied and then, at the close of his case, when plaintiff moved to strike testimony relating to the California accident, the trial court reserved its ruling on this motion.

OPINION

Plaintiff initially contends that the trial court erred in rulings concerning the California accident. He first asserts that the court abused its discretion in denying his motion in limine to exclude any reference to that accident.

A motion in limine, made before trial, seeks an order excluding certain evidence on the ground that it is inadmissible (Department of Public Works & Buildings v. Sun Oil Co. (1978), 66 Ill. App.3d 64, 383 N.E.2d 634; Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App.3d 189, 359 N.E.2d 752), and its grant or denial is a matter within the trial court's discretion (People v. McClain (1978), 60 Ill. App.3d 320, 376 N.E.2d 774).

• 1 In the instant case, plaintiff's motion in limine was supported only by his answer to an interrogatory stating, "I was injured on the job on January 14, 1976 in a 14 foot fall in Los Angeles breaking my right ankle, my right elbow and my right wrist." Plaintiff's counsel argued that because defendant had not obtained the California accident medical records, she would not be able to show that his back was injured at that time and, thus, she should not be permitted to inquire concerning that occurrence. The court pointed out, however, that plaintiff could give a hypothetical question to a qualified doctor based upon facts developed from the testimony of plaintiff and other witnesses and ask for an opinion as to the possible relationship between the California accident and plaintiff's present condition. We note that in his answers to interrogatories, plaintiff made no specific statement that he did not injure or receive treatment for his back in the California accident and that defendant's attorney informed the court that he was prepared to prove that the fall aggravated plaintiff's condition. Under these circumstances, the court did not abuse its discretion in the denial of plaintiff's motion in limine.

• 2 Second, plaintiff makes a general statement that "a multiplicity of error occurred during the course of the trial stemming directly from the refusal of the court to grant the appellant's motion in limine." He does not, however, specify any particular error but makes only the broad statement that defendant did not establish a relationship between the California accident and plaintiff's condition at the time of trial. A general statement of this type presents no issue for review. Error is never presumed by a reviewing court (Aetna Life Insurance Co. v. Strickland (1975), 33 Ill. App.3d 52, 337 N.E.2d 285), and a party bringing a cause for review must not only specify the error complained of but show it from the record (Lill Coal Co. v. Bellario (1975), 30 Ill. App.3d 384, 332 N.E.2d 485).

• 3 Plaintiff does argue that the court erred in not granting his motion at the close of his case to strike the testimony elicited concerning the California accident, for the reason that no relationship between that accident and plaintiff's condition had been shown. The court reserved ruling on that motion, and our search of the record fails to disclose any subsequent ruling or request therefor by plaintiff. It is well established that when the court reserves a ruling, the movant must seek a decision or ruling in order to preserve the motion for review. (In re Annexation of the Village of Downers Grove (1974), 22 Ill. App.3d 122, 316 N.E.2d 804; Trisko v. Vignola Furniture Co. (1973), 12 Ill. App.3d 1030, 299 N.E.2d 421.) In the absence of a ruling here, we reject plaintiff's contention that the court erred in not granting plaintiff's motion to strike.

• 4, 5 Third, plaintiff contends for the first time in his reply brief that the court erred in overruling his objection to certain testimony of Dr. Stone relating to the California accident. Dr. Stone was defendant's expert and, ...


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