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Elberts v. Nussbaum Trucking

OPINION FILED JUNE 12, 1981.

VERNIS ELBERTS, PLAINTIFF-APPELLANT,

v.

NUSSBAUM TRUCKING, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

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

In this appeal from a judgment entered on a verdict awarding damages of $2,000 for personal injuries, plaintiff seeks a new trial as to the issue of damages only — contending that the award was palpably inadequate.

Plaintiff testified that in a collision between the automobile she was driving and defendants' semi-trailer truck, her chest hit the steering wheel and her head struck the roof of her car; that she was taken to a hospital where she complained of pain in her neck and back; that X rays were taken, and during her 12 days in the hospital she was given traction and daily physical therapy for her neck and back; that on at least one occasion she was given a spinal injection of medication for pain; that when she left the hospital, she wore a prescribed back brace and a neck collar; that she wore both during the daytime for about a year, and at the time of trial still wore the neck collar off and on; that after leaving the hospital, she received traction for her neck and massage for her back as an outpatient for about a month; that she still has pain and has taken prescribed muscle relaxant medication up to the time of trial; that she was not able to do housework for 4 or 5 months after the accident; that although she had been employed as a nurse's aid for 3 1/2 years, she was not working at the time of the accident but was receiving unemployment compensation in the amount of $166 every two weeks; that she initially said this compensation was discontinued for 4 or 5 months because she was unable to work due to the injuries from the accident but later said she did not know how long it was; and that at the time of trial she had been working for three years at a plant where she sits at a machine but does no lifting.

Introduced in evidence without objection were paid bills of $166 from the attending physician, $155 for a back brace, and $19.93 for prescriptions. An objection to a paid hospital bill for $1,496.45 was sustained.

Plaintiff's adult daughter in pertinent part testified to the traction received by plaintiff in the hospital, to the wearing by her of the back brace and neck collar after she left the hospital, and to doing plaintiff's housework for about a year after she left the hospital.

The deposition of plaintiff's attending physician was read in evidence. He stated that when he first saw her at the hospital she complained of neck and back pain; that he found tenderness in those parts of her body and a mild straightening of the lordotic curve, which was a temporary condition; that she tested negative for neurological damage; that while initial X rays were negative, an X ray taken three weeks later showed a narrowing of the C-5 C-6 vertebral interspace; that while this narrowing could have been a cause of her pain, it also could have existed without pain; that he could not testify as to when the narrowing occurred; that her condition upon release from the hospital on September 27 required physical therapy and the wearing of a back brace and neck collar, and his prescribing a muscle relaxant for her; and that the only time he saw her for treatment after she left the hospital was on October 7, at which time she was wearing the neck collar.

OPINION

Plaintiff first contends that the evidence as to her injuries and the medical treatment therefor was substantially uncontradicted and thus that the award of damages, which did not meet the medical expenses and loss of income sustained, was palpably inadequate. We disagree.

While the question as to damages is ordinarily for the trier of fact (Flynn v. Vancil (1968), 41 Ill.2d 236, 242 N.E.2d 237), as stated in Robin v. Miller (1978), 67 Ill. App.3d 656, 661, 384 N.E.2d 889, 893:

"The mere fact that the verdict is less than the claimed special damages does not necessarily mean that the award is inadequate even where the defendant has offered no contradictory evidence; the jury is free to determine the credibility of witnesses and to assess the weight to be accorded their testimony."

It was further explained in Haleem v. Onate (1966), 71 Ill. App.2d 457, 460-61, 219 N.E.2d 94, 96:

"The mathematical computation of bills received and the alleged loss of earnings represent only a part of the total evidence. * * *

There are other evidentiary matters to be considered. The testimony surrounding the claimed injuries may have been impeached or it may be contradictory or unreliable. There may be evidence which carries an implication that the injuries have been exaggerated or even feigned or that the medical treatment was either unnecessary or prolonged. There may be evidence which makes doubtful the necessity of the time alleged to have been missed from work. All of these and like factors must be weighed. And if there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses incurred, then the verdict of the jury should not be disturbed on review."

• 1 In the instant case, contrary to the assertion of plaintiff, the special damages proved were substantially less than the verdict. Paid bills from the doctor for a back brace and prescriptions totaling $340.93 were received in evidence. There was, however, no specific proof as to the amount of unemployment compensation lost by plaintiff. She testified on direct examination that it was "maybe 4, 5 months," but on cross-examination answered that she did not know the period of her loss. *fn1 Concerning her injuries, we note that she complained to her doctor upon her arrival at the hospital of pain in her neck and back, and he found tenderness in those areas with a mild straightening of the lordotic curve, which he said was only a temporary condition; that the original X rays were negative, but three weeks later an X ray showed a narrowing of the C-5 C-6 vertebral interspace; that her doctor stated that he could not say when that narrowing occurred, and he gave no opinion as to whether it was in any manner related to the accident in question; that plaintiff testified she wore prescribed back and neck braces for about a year and still wore the neck brace occasionally at trial; that her doctor gave no testimony as to any injury to her back other than the tenderness found at the time of the first examination; and that plaintiff testified that she saw her doctor for treatment on only one occasion after leaving the hospital. Thus, there appears to be a genuine conflict not only ...


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