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Hehir v. Bowers

OPINION FILED JUNE 27, 1980.

JOSEPHINE S. HEHIR, PLAINTIFF-APPELLANT,

v.

JEAN BOWERS, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.

MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiff, Josephine Hehir, appeals from a judgment of the Circuit Court of Winnebago County entered on a jury verdict awarding her $22,500 in her personal injury action against defendant, Jean Bowers. Plaintiff's principal contention on appeal is that the jury's damage award was inadequate.

On December 8, 1975, the plaintiff, who was walking to church, was struck by defendant who was operating a motor vehicle. Plaintiff was subsequently hospitalized for 10 days and treated for a fractured right tibia (bone below the knee) and inflammation of the right shoulder. After her hospital stay she remained in a cast for 6 to 8 weeks.

Prior to the accident, plaintiff, who was aged 57, worked as a cashier in a grocery store. Part of her job was to stock shelves. She was generally in good health, had a good work record, played tennis and bowled, and helped care for her semi-invalid husband. While in the hospital following her injury, plaintiff was found to be suffering from diabetes and was required to take oral medication. Three physician witnesses, Drs. Osadjan, Vidoloff, and Behmer, testified that the diabetic condition could have been triggered by the trauma. However, Dr. Osadjan testified that in his opinion the trauma did not cause the diabetes. Similarly, a fourth physician, Dr. Leonard, testified that traumatically induced diabetes could not be controlled by oral medication.

In November of 1978, plaintiff's right knee buckled and she fell, causing injury to her shoulder. Dr. Vidoloff testified that buckling of the leg was consistent with his findings that the muscles of plaintiff's right leg had deteriorated from December 1978 to April 1979. Dr. Suma, a treating physician, testified that there was a causal relationship between the knee giving way and the original injury. However, Dr. Leonard found the grating condition of plaintiff's left knee, which had not been injured, to exist to the same degree as that in the right knee. Also, Dr. Suma testified that while he had been treating the plaintiff during 1977 and 1978, he had no specific information on possible buckling of the knee.

This case went to trial in April of 1979. At the close of all evidence, the court directed a verdict in favor of plaintiff and the jury was instructed that their only determination was to be the amount of damages. The jury returned a verdict in the amount of $22,500. Plaintiff appeals.

Five issues are presented by this appeal: (1) whether the jury's award of $22,500 was inadequate, (2) whether the jury was guilty of misconduct or prejudice, (3) whether the denial of plaintiff's demonstration of range of motion of the right shoulder was an abuse of discretion, (4) whether certain questions, conduct, and comments of defense counsel were improper, and (5) whether it was error to fail to give plaintiff's tendered instruction on circumstantial evidence.

I.

• 1 As a general rule, the amount of damages lies within the province of the jury. A reviewing court will not overturn a jury's determination of damages unless the amount awarded is palpably inadequate or unless it is clear that the jury disregarded a proven element of damages. (Robin v. Miller (1978), 67 Ill. App.3d 656, 661, 384 N.E.2d 889, 893.) In the instant case there was conflicting testimony concerning whether the initial trauma was the proximate cause of plaintiff's diabetes or of her fall in November of 1978. We have reviewed this testimony and conclude that a jury could reasonably have found that these latter conditions were not the responsibility of the defendant. While the parties are unable to agree on a figure for special damages, somewhere between $10,000 and $14,000 in medical expenses and lost wages are directly attributable to the initial injury. In light of this figure and the conflicting testimony concerning the causes of diabetes and the subsequent fall, we cannot say that the damages awarded are so inadequate that a new trial must be awarded. See Potter v. Rodrick (1979), 77 Ill. App.3d 7, 395 N.E.2d 746.

II.

Plaintiff next maintains that the jury was guilty of misconduct or prejudice. The record does contain sworn statements by jurors that at least one juror believed in faith healing and therefore felt that little or no money compensation was needed. However, these statements and counsel's supporting affidavit were not filed until June 6, 1979 (almost two months after judgment) as part of plaintiff's third post-trial motion. We have serious questions about the propriety of a party making successive post-trial motions. (See Drafz v. Parke, Davis & Co. (1980), 80 Ill. App.3d 540, 541, 400 N.E.2d 515, 516.) We need not reach this procedural question as we conclude that the sworn statements were an improper attempt to impeach the jury's verdict.

• 2, 3 In People v. Holmes (1978), 69 Ill.2d 507, 511-12, 372 N.E.2d 656, 658, our supreme court abandoned the absolute rule against impeaching jury verdicts instead drawing a distinction between those cases where juror testimony is used to prove the "motive, method or process by which the jury reached its verdict" and cases where it is used "as proof of conditions or events brought to the attention of the jury without any attempt to show its effect on the juror's deliberations or mental processes." Under Holmes the use of juror testimony is only proper under the latter circumstances. (See also People v. Holmes — Juror Statements are Admissible to Show That Extraneous Information Reached the Jury, 1979 U. Ill. L.F. 477.) In the instant case, the allegation that a juror expressed a belief in faith healing is not concerned with a tangible outside influence on the jury, and thus plaintiff should not be allowed to impeach the jury's verdict. See Annot., 32 A.L.R. 3d 1356 (1970), and Federal Rule of Evidence 606(b).

• 4 Plaintiff also argues that the juror in question lied during voir dire and that this is grounds for a new trial. (See People v. Oliver (1977), 50 Ill. App.3d 665, 365 N.E.2d 618.) However, it is impossible to determine if this juror lied during voir dire as the voir dire was not transcribed and we have not been provided with any substitute for a report of proceedings. Thus plaintiff has ...


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