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Ross v. Cortes

OPINION FILED MAY 4, 1981.

LUE BIRDIE ROSS, PLAINTIFF,

v.

EDWARD S. CORTES, DEFENDANT. — (DALE ROSS, PLAINTIFF-APPELLANT,

v.

EDWARD CORTES ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT MACKEY, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ The single issue involved in this motor vehicle accident case is the amount of the verdict returned by the jury for property damage. Lue Birdie Ross filed a complaint against Edward Cortes for personal injuries resulting from an automobile collision. Dale Ross (plaintiff) brought action against Edward Cortes and Sylvester Cortes for damage to plaintiff's automobile. The cases were consolidated. Defendants filed counterclaims. The jury returned a verdict of $4600 in favor of Lue Birdie Ross and in her favor of the counterclaim. By special interrogatories Lue Birdie Ross was found not guilty of contributory negligence and Edward Cortes was found guilty of contributory negligence. The jury also found in favor of plaintiff and against defendant Edward Cortes for $165 for property damage. Plaintiff appeals.

In this court, plaintiff takes the position the evidence shows definitely the actual amount of property damage so that the verdict is grossly insufficient. Defendant responds evidence of payment by plaintiff of the purported repair bill was hearsay and thus the amount of the verdict was proper.

On direct examination plaintiff identified four photographs as accurately representing the condition of his automobile after the occurrence. The photographs were received in evidence without objection. Plaintiff also testified his car was taken to 1000 South Wabash to "Auto and repair." Plaintiff identified certain bills issued by "One Thousand Auto Rebuilders, Inc." as reflecting the repair to his car and cost of tires from Acorn Tire Co. The total of these bills was $3566.64.

Plaintiff testified these bills arose out of this accident and reflect the damage to plaintiff's car. Plaintiff testified the bills were paid. The bills were offered in evidence. Counsel for defendant objected. On cross-examination, counsel for defendant asked the witness if there was anything on the bills such as a stamp to indicate payment. The witness answered "No, but I know it's been paid, even if it is not stamped on there." The cross-examiner then asked the witness, "How do you know it's been paid?" The witness responded that when they (apparently the repair people) called him to come pick up his car they told him "to bring $165 and the insurance would pay the rest of it." Plaintiff testified he picked up his car, paid $165 and brought it home.

An objection was made by defendants to receiving the bills in evidence. The objection was on the stated ground that there was no stamp evidencing payment of the bills on the face thereof so that the evidence of payment was hearsay. The trial court overruled the objection and the bills were received in evidence.

In Smith v. Champaign-Urbana City Lines, Inc. (1969), 116 Ill. App.2d 289, 291, 252 N.E.2d 381, this court held:

"It has been the long-followed rule in Illinois that a paid automobile repair bill is admissible in evidence without other foundation as prima facie evidence of the necessity and reasonableness of such repairs. [Citations.]"

The same reasoning was applied in Saunders v. Wilson (1969), 114 Ill. App.2d 380, 253 N.E.2d 89. In that case this court held the stamp or other manifestation on the face of a repair bill is not the material point because the bill itself does not provide the proof. This court referred to the critical matter as follows (114 Ill. App.2d 380, 382-83):

"It is the uncontroverted testimony of the plaintiff under oath that the repairs were necessitated by the accident, that the repairman was in the business of making such repairs, and that he paid the bill. Such a transaction is not suspect. It has long been the law in this jurisdiction that once a proper foundation has been laid, a paid repair bill is admissible. [Citations.] Testimony as to the fact of payment is also admissible. [Citation.] No case has been brought to our attention in which it has been held that oral evidence supporting the bona fides of such a bill is inadequate in the absence of a notation of payment on the bill."

An interesting sidelight upon this situation appears from Flynn v. Cusentino (1978), 59 Ill. App.3d 262, 375 N.E.2d 433, appeal denied (1978), 71 Ill.2d 608. This court held the same reasoning applies to hospital bills, and even to doctor bills on the theory that payment of this type of bill is prima facie evidence the bill was reasonable and the crucial matter is the testimony the bill has been paid. The court added any contrary rule would cause unnecessary inconvenience to doctors, hospital personnel and the public. The same principle is set out in Millburn Mutual Insurance Co. v. Glaze (1980), 86 Ill. App.3d 1055, 1061, 410 N.E.2d 295, and cases there cited.

In the case before us the reference by plaintiff to payment of the bill by the insurance company was brought out, apparently inadvertently, by defendant in cross-examination. In our opinion, as shown by the above authorities, payment of the bill is the critical testimony.

• 1, 2 In addition, we do not believe the testimony plaintiff paid the bill is hearsay. This evidence involves only a description of a physical act and should not be classified as hearsay. In addition, where the bill was paid by insurance or from any other source is immaterial as plaintiff could properly recover the entire amount of damages under the collateral source rule. (See Smith v. General Casualty Co. (1979), 75 Ill. App.3d 971, 974, 394 N.E.2d 804; Biehler v. White Metal Rolling & Stamping Corp. (1975), 30 Ill. App.3d 435, 444, 333 N.E.2d 716.) Viewed in the context of the record before us, in the absence of evidence to the contrary, plaintiff's testimony of payment of the above amount stands unassailed.

• 3 These principles cannot be reconciled with the verdict of the jury which disregarded the evidence of payment of the correct sum and instead returned a verdict for $165. Defendant urges the amount of a verdict is discretionary with the jury and may not be interfered with by the court. However, the authorities cited by defendant are concerned with the ascertainment of damages which rest peculiarly within the discretion of the jury. (DMI, Inc. v. Country Mutual Insurance Co. (1980), 82 Ill. App.3d 113, 115, 402 N.E.2d 805 (involving a premature action for indemnity prior to judgment on the underlying claim); Kitsch v. Goode (1977), 48 Ill. App.3d 260, 269, 362 N.E.2d 446 (involving the traditional type of damages for personal injuries); and Long v. Duggan-Karasik Construction Co. (1974), 23 Ill. App.3d 812, 832-33, 320 N.E.2d 553, appeal denied (1975), 58 ...


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