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Nicholl v. Scaletta





APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.


Rehearing denied April 2, 1982.

Plaintiffs filed an action against defendant to recover damages for personal injuries sustained when their car was rear-ended by defendant's car. The court entered a directed verdict against defendant on the issue of liability. The jury awarded zero damages to Herbert Nicholl and $500 to Mary Nicholl, an amount less than her claimed medical expenses and loss of wages. The trial court granted a new trial on the issue of damages with respect to Mary Nicholl only, and we granted leave for defendant to file an interlocutory appeal from this order pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1979, ch. 110A, par. 306).

The issues presented on appeal are: (1) whether the trial court abused its discretion by granting a new trial on the issue of damages, (2) whether the trial court prejudicially erred in its instruction to the jury, and (3) whether defendant presented this court with a proper record for review.

The pertinent facts are:

On March 29, 1974, defendant's automobile struck the rear of plaintiffs' car, which was stopped to make a turn on Lincoln Avenue in Lincolnwood, Illinois. Defendant was travelling from 15 to 20 m.p.h. at the time of the collision. Plaintiffs' car was pushed forward one or two feet, but there was no damage to the exterior of their car. When asked by the police if there were any injuries, both plaintiffs responded that they were "all right," and they did not seek emergency room treatment.

Neither plaintiff sought medical attention until three or four days after the accident when they visited Dr. Marshall Kanter. Although Dr. Kanter noted the same findings upon examination of both, he considered it necessary to hospitalize Mary Nicholl only. Her subjective complaints included stiffness, plus pain in the pelvic area and in her lower stomach.

The following day she was admitted to Martha Washington Hospital for a 10-day stay. Dr. Kanter testified that he diagnosed some limitation of movement in her neck but none in her lower back. During this hospitalization she received physical therapy and was examined by an orthopedic surgeon, Dr. Leonard Smith, who found limitation of movement in her lower back. Dr. Kanter conceded that, other than traction, the treatment she received in the hospital could have been given in his office.

Mary Nicholl testified that she saw Dr. Kanter for a minimum of 30 visits from her hospital discharge in April until the following August. Dr. Kanter, however, testified that he only treated her on 11 visits in 1974.

In July 1974, Mary Nicholl went to see Dr. Smith. He gave her injections and sent her to Chicago Physical Therapy Center to receive physical therapy treatments three times a week for two months. Dr. Smith admitted on cross-examination that he is a stockholder of the Chicago Physical Therapy Center, which shares an office suite with his own office.

In April 1975 she returned to see Dr. Smith because of a return of stiffness in her neck and shoulders. He recommended that the same physical therapy treatments be given. She received 20 treatments in 1975 from Dr. Virginia Breszahan, a chiropractor at the Center, over a six-week period. However, Dr. Breszahan testified that she only gave plaintiff seven physical therapy treatments in 1975.

The combined hospital and doctor bills totaled $2,269.25. Dr. Kanter sent the bill for his services to Mary Nicholl's attorney instead of sending it to his patient. Although the bill was sent in 1974 and was not paid, a follow-up bill was not sent to Mary Nicholl until five years later, in May of 1980. Similarly, Dr. Breszahan sent her bill to the plaintiffs in June 1975, and although they never paid, a follow-up bill had not been sent as of the time of trial in September 1980.

In addition to medical expenses, Mary Nicholl claimed loss of wages of $25 per week plus tips for six weeks work as a waitress. However, her income tax return for 1974, the year of the accident, reported that she earned no income that year.

Following the presentation of the evidence, the trial court directed a verdict against defendant on the issue of liability. During closing argument, plaintiffs' counsel contended that Mary Nicholl suffered damages totaling $2,269.25 and that she deserved a verdict of between $17,500 and $19,000.

The jury was instructed, pursuant to defendant's instruction No. 9, as follows:

"You need only decide what injuries to plaintiff, Mary Nicholl, resulted from this occurrence and what amount of money will reasonably and fairly ...

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